05 May 2017

COMMENTARY ON THE BILL TITLED INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCES

Written by South Asian Centre for Legal Studies

I. Introduction

In December 2015, the Government of Sri Lanka ratified the U.N. International Convention for the Protection of All persons from Enforced Disappearances (ICPPED). Under the ICPPED, Sri Lanka has three principal obligations: first, to criminalize enforced disappearance under domestic law; second, to grant detainees and the relatives of detainees a number of rights and remedies for breach of those rights; and third, to cooperate with other Convention States in the investigations, prosecutions, and extraditions of perpetrators of enforced disappearances.

The International Convention for the Protection of All Persons from Enforced Disappearances Bill (“The Bill”) will soon be tabled before Parliament. By tabling the Bill before Parliament, the government seeks to satisfy its obligations under the ICPPED. Upon comparison, the language in the Bill largely reflects the language in the ICPPED. However, as will be explained below, the government will be unable to satisfy its international obligations in the prosecution of perpetrators of enforced disappearances due to inadequacies in the definition of enforced disappearance in the Bill, the absence of some of the necessary modes of liability to try the crime, and the lack of clarity with respect to the retroactive applicability of the Bill.

The present commentary seeks to accomplish three principle tasks: 1. to explain the contents of the Bill, 2. to analyse how the provisions in the Bill fit into existing law and practice, and 3. to assess whether the contents of the Bill satisfy Sri Lanka’s obligations under the ICPPED and international law. The commentary first analyses the substantive law applicable to the crime of enforced disappearance under international law as well as the proposed Bill. Second, the commentary examines criminal procedure applicable to the framework established by the Bill. Finally, the commentary evaluates the rights framework set out in the Bill, including the punishment for violations of these rights and the enforcement regime specific to these rights. Recommendations for improvement of the Bill’s framework are made throughout the report, in addition to being listed in the conclusion.

II. The Crime of Enforced Disappearance

Section 3 of the Bill defines the crime of enforced disappearance. It establishes a framework for sentencing and determines penalties that apply to those who are found guilty of the crime.

This section proceeds by first outlining the definition and scope of enforced disappearance under international law. It then examines the definition of the crime of enforced disappearance under the Bill before looking at the differences between enforced disappearance, abduction and wrongful confinement under domestic law. Finally, this section looks at the modes of liability that attach individual criminal responsibility to perpetrators of enforced disappearance.

As will be shown, although the definition in the Bill mirrors the language of the definition found in the ICPPED, the structure of the definition is problematic in two principle respects: 1. the Bill fails to adequately reflect the full scope of the criminality recognized under international law and 2. the Bill fails to adequately adapt the ICPPED definition to domestic criminal law.

A. The Definition of the Crime of Enforced Disappearance under International Law

In order to assess the adequacy of the definition presented in the Bill, it is first appropriate to look at the scope of the definition under international law.

1. Definition of Enforced Disappearance in International Instruments

Article 2 of the ICPPED defines enforced disappearance for purposes of interpretation related to the ICPPED. The crime that is defined in the Bill is based on the definition found in Article 2. Article 2 reads as follows:

For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

Although the ICPPED is the most recent international legal instrument defining enforced disappearance, the first definition of enforced disappearance appears in the preamble of the UN Declaration on the Protection of All Persons from Enforced Disappearance (the “Declaration”) adopted by resolution in the UN General Assembly on 18 December 1992.1 Under the Declaration, an enforced disappearance is considered to have occurred, when:

persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.

In addition to defining enforced disappearance, the ICPPED and the Declaration establish that the act of forcibly disappearing an individual constitutes a crime. Yet, the definitions in the ICPPED and in the Declaration are both framed as a human rights violation, rather than as a criminal offense. This is because each instrument sets out States’ obligations since States are the primary obligation bearers under each instrument. As such, each definition is drafted in a manner that triggers State responsibility, rather than individual criminal responsibility. As a result, neither definition contains the elements necessary to define the crime of enforced disappearance as such. More specifically, neither definition contains clear expressions of the actus reus or the mens rea of the crime of enforced disappearance. This explains why, enforced disappearance as a crime cannot be criminalized simply by importing the definition of the Convention into domestic law. 

2. Common Definitional Features

From the definitions laid out above a number of common features emerge with respect to the crime of enforced disappearance under international law. These features are fundamental to the definition of the crime. As such, they must be found in any domestic law that seeks to criminalize enforced disappearance. These common definitional features point to the nature of the crime of enforced disappearance as both a composite and a continuing crime.

a) Composite Crime

Enforced disappearance is made up of two discrete simultaneous or consecutive acts.2 For an enforced disappearance to exist first, a deprivation of liberty must take place. Second, this deprivation of liberty must either be accompanied by or followed by the refusal to acknowledge it. Both elements need to be present with respect to a particular case for it to be characterized as an enforced disappearance. However, it is crucial to note that while both elements need to take place, an individual perpetrator need only commit one element or the other.3 Phrased another way, the two acts that constitute an enforced disappearance may be committed by two separate individuals acting with the requisite knowledge of the commission of the other act. This is in recognition that enforced disappearances in practice are typically carried out by multiple individuals acting in concert to perpetrate the crime.

b) Continuing Crime

Additionally implicit in the definition of the crime is that it is a continuing violation. The crime is said to begin at the instant of the deprivation of liberty and it continues until the deprivation of liberty has been acknowledged and the fate and whereabouts of the individual have been clarified.4 In other words, the crime remains in progress every day that the perpetrators refuse to acknowledge the deprivation of liberty or fail to provide information as to the fate or whereabouts of the disappeared person.

The continuing nature of the violation has been explicitly stated in the Declaration, the ICPPED, and by numerous human rights bodies.5 Further, in its general comment on enforced disappearance as a continuous crime, the UN Working Group on Enforced or Involuntary Disappearances (WGEID) stated:

Enforced disappearances are prototypical continuous acts. The act begins at the time of the abduction and extends for the whole time that the crime is not complete, that is to say until the State acknowledges the detention or releases information pertaining to the fate or whereabouts of the individual.6

The nature of enforced disappearance as a continuing violation has critical implications for the rights of enforced disappearances’ victims, particularly in relation to remedies and the prescription period as will be discussed in detail below.

B. The Definition of the Crime of Enforced Disappearance under the Bill
1. Introduction

The definition contained in Section 3 is similar to that found in the ICPPED. As will be examined below, certain aspects of the definition in the Bill conform to international best practice as laid out by the WGEID.7 However, the Bill fails to capture the full scope of the ICPPED definition.

In fact, the definition contained in the Bill will not cover the full range of instances that constitute the crime of enforced disappearance envisioned by the ICPPED. More specifically, Sections 3(1) and 3(2) are structured in such a way that they do not encompass situations where the actus reus of the crime is committed by more than one perpetrator. As will be explained below, this will prevent the qualification of many acts as enforced disappearances. It will also prevent the indictment of a wide range of perpetrators whose conduct would constitute the crime of enforced disappearance in international law. As such, Parliament should revise Section 3(1) and Section 3(2) to reflect each of the key elements under international law.

2. Definition in the Bill: Sections 3(1) and 3(2)

The definition in Section 3(1) and 3(2) of the Bill reads as follows:

Section 3(1): Any person who, being a public officer or acting in an official capacity, or any person acting with the authorization, support or acquiescence of the State –

(a) arrests, detains, wrongfully confines, abducts, kidnaps, or in any other form deprives any other person of such person’s liberty; and

(b) (i) refuses to acknowledge such arrest, detention, wrongful confinement, abduction, kidnapping, or deprivation of liberty; or

(ii) conceals the fate of such other person; or (iii) fails or refuses to disclose or is unable without valid excuse to disclose the subsequent or present whereabouts of such other person, shall be guilty of the offence of enforced disappearance...

Section 3(2): Any person who,

(a) wrongfully confines, abducts, kidnaps or in any other form deprives any other person of such person’s liberty; and

(b) (i) refuses to acknowledge such wrongful confinement, abduction, kidnapping, or deprivation of liberty; or

(ii) conceals the fate of such other person; or (iii) fails or refuses to disclose or is unable without valid excuse to disclose the subsequent or present whereabouts of such other person, shall be guilty of the offence of enforced disappearance...

a) Perpetrators under 3(1) and 3(2)

Section 3(1) applies to government officials and any person “acting with the support, authorization, or acquiescence of the State”. The language “with the support, authorization, or acquiescence of the State,” directly reflects the language in Article 2 in the ICPPED. Thus, this article is meant to apply not only to recognized government officials but also to agents acting on behalf of the State or with State authorization either explicitly or implicitly.

Section 3(2) applies to any person. This definition criminalizes actions by non-state actors even if they have no association with the State. Section 3(2) was written in recognition that disappearances have been carried out in Sri Lanka not only by State actors, but also by armed groups who have no connection to the State.

This paragraph broadens the definition beyond that found in ICPPED Article 2. As described above, Article 2 of the ICPPED is concerned with State responsibility, rather than individual criminal responsibility, and as such is directed at States who have obligations to refrain from committing enforced disappearances and to provide redress in the event that enforced disappearances have taken place. Section 3(2) of the Bill is naturally broader than Article 2 of the ICPPED as it is specifically concerned with the conduct of individuals, rather than that of the State. Despite this distinction, the inclusion of section 3(2) is mandated by ICPPED Article 3, which specifies that a State party must “take appropriate measures to investigate acts” committed by individuals acting without the authorization, support, or acquiescence of the State and “to bring those responsible to justice (emphasis added).8

The language in the first clause of 3(1) and 3(2) meets the minimum standards required in criminalizing enforced disappearances under international law. However, as will be analysed below, the article read as a whole prevents the prosecution of the full range of perpetrators that would be found responsible under international law. This is due to the requirement that the elements constituting the actus reus of the crime are committed by one individual.

b) Actus Reus

Sections 3(1) and 3(2) each contain a two-prong definition for the crime of enforced disappearance. This two prong definition requires that a prosecutor first show that a deprivation of liberty has occurred under 3(1)(a) or 3(2)(a). The definition then requires the prosecutor to show that the individual who has committed the deprivation of liberty has subsequently refused to acknowledge that deprivation of liberty, or to provide information about the fate or whereabouts of that individual, per Sections 3(1)(b) or 3(2)(b). Thus, according to this definition, an individual must commit two cumulative elements to be guilty of a crime of enforced disappearance: the deprivation of liberty and the refusal to acknowledge that this deprivation of liberty has occurred. If one or the other elements has not been committed by the same individual, that individual cannot be convicted of the crime of enforced disappearance under the Act.

(1) First Prong: Deprivation of Liberty
The Bill defines “deprivation of liberty” in Section 25 as “the confinement of a person to a particular place, where such person does not consent to that confinement.” Section 3(1)(a) and 3(2)(a) each contain non-exhaustive lists of acts that could constitute a deprivation of liberty.9

There is a difference between the lists contained in Sections 3(1)(a) and 3(2)(a). Section 3(1)(a) includes lawful arrests and detentions, whereas Section 3(2)(a) does not. Section 3(1)(a) establishes that the crime of enforced disappearance may be committed even if the original arrest or detention is executed legally. The definition in Section 3(2)(a) differs from this definition in that the deprivation of liberty itself is prima facie illegal. This difference in wording is attributable to that fact that this section applies specifically to non-state actors and non-state actors have no legal authority to arrest or detain.

Despite this difference, the definitions in Sections 3(1)(a) and 3(2)(a) each contain the catchall phrase “or in any other form deprives any other person of such person’s liberty...” This suggests that deprivations of liberty that fall under Section 3(1)(a) and Section 3(2)(a) include situations that may fall outside the legal definition of arrest, detention, abduction, wrongful confinement, etc.10 The broad scope of this provision is in line with wording contained in Article 2 of the ICPPED and identified as international best practice by the WGEID.11

(2) Second Prong: Refusal to Acknowledge

The second prong requires that there was either: 1. a refusal to acknowledge the arrest, detention, wrongful confinement, abduction, kidnapping, or deprivation of liberty; 2. a concealment of the ultimate fate of the disappeared person; or 3. a failure or refusal to disclose the subsequent or present whereabouts of the disappeared person without a valid excuse for the failure or refusal to disclose such information.

The obligation of the detaining authority to acknowledge the detention is triggered as soon as there is a deprivation of liberty, such as an arrest, and continues until the deprivation of liberty is acknowledged and the fate of the person clarified. Therefore, temporally, the refusal or failure to acknowledge the detention can either accompany the deprivation of liberty in the first element or follow the deprivation of liberty.

 The scope of the obligation to acknowledge the detention is spelled out in more detail in Sections 14 and 15, as will be discussed below. In short, it requires that the detainee is afforded certain communication rights with his/her family or legal representative, that the detention is recorded, and that the family or legal representatives have access to information pertaining to their detention.

c) Problems with Definition in 3(1) and 3(2)

The two-prong approach as drafted in Section 3 of the Bill differs from the approach in the ICPPED in one crucial respect that drastically affects the possibility of prosecuting perpetrators of enforced disappearance. Under Article 2 of the ICPPED an enforced disappearance has taken place when there is a deprivation of liberty “followed by” a refusal to provide information. This definition is structured in a way so as to not link both actions to an individual perpetrator. According to this definition, the party responsible for the deprivation of liberty need not be the party who is also refusing to provide information about the deprivation of liberty. Pursuant to this definition, several persons could be prosecuted for completing different aspects of the crime of enforced disappearance, even if they are not involved in each of the acts committed by others in the series of events.12

The drafting of Section 3 of the Bill, on the other hand, suggests that an individual is guilty of the crime of enforced disappearance only if that person is responsible for both the deprivation of liberty and the refusal or failure to provide information regarding that deprivation of liberty. As a result, situations where one party is responsible for a deprivation of liberty, yet another party is aware of the deprivation of liberty and is responsible for the refusal or failure to provide information about it may fall outside the scope of the provision. Thus, neither party will be guilty of the crime of enforced disappearance under domestic law, although the result of their combined actions would be the same. Thus, the wording of this definition is more restrictive than the definition of the crime of enforced disappearance under international law.

This limitation would be problematic in practice as the crime of enforced disappearance is known as a “complex offense,” meaning it almost always involves a web of perpetrators acting in concert to further an organizational policy.13 Such would also be the case in Sri Lanka, where the individuals responsible for arresting, may not also be responsible for detaining. Further, this limitation would mean that the crime would not be constituted for purposes of superior liability under Section 3(3), as will be discussed in further detail below. The Bill’s definition therefore severely limits the ability of prosecutors to prosecute the full web of those responsible for enforced disappearances under the international framework.

As a result of this deficiency, it is crucial that Section 3 is reformulated to recognize that the two elements in the actus reus need not be committed by the same individual. In fact, it is acknowledged that the crime of enforced disappearance is constituted when the perpetrator commits one of the acts: either the deprivation of liberty or the failure/ refusal to acknowledge the detention with the requisite mens rea.

In practice two scenarios must be envisioned:

1. The perpetrator deprives an individual or his/ her liberty and this deprivation of liberty is accompanied or followed by a refusal to acknowledge the deprivation of liberty. The perpetrator knew that the deprivation of liberty would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of liberty or to give information on the fate or whereabouts of the person.14

2. The perpetrator refused or failed to acknowledge a person’s deprivation of liberty or to give information on the fate or whereabouts of that person. And the perpetrator knew that his/her refusal was preceded or accompanied by the person’s deprivation of liberty.15

According to the above the crime would be constituted when a perpetrator deprives a person of his/ her freedom or when the perpetrator refuses to acknowledge the person’s deprivation of liberty or to give information on the fate or whereabouts of that person. Further, it can be discerned that the mens rea is satisfied when the individual commits the act above with the knowledge that the second act has occurred or will occur in the ordinary course of events.

Therefore, this structure explicitly lays out each of the elements necessary to incorporate the full scope of enforced disappearance under the ICPPED. This adequately captures the nature of enforced disappearance as a composite and continuous crime. It further adequately reflects that the two elements of the actus reus can be committed by more than one individual acting with the knowledge that the other element was or is being fulfilled. As such, revision must be made to reflect this structure.

C. Definitional Differences Abduction & Wrongful Confinement

There are a number of commonalities between enforced disappearance as defined by the Bill and the crimes of abduction and wrongful confinement already codified in the Sri Lankan criminal code. Despite these commonalities, the crime of enforced disappearance has a number of distinguishing features. As such, attempting to try acts that constitute enforced disappearance under either abduction or wrongful confinement would be inadequate. Thus, the incorporation of the crime of enforced disappearance as a standalone crime into the criminal code is necessary and justified.

Section 353 of the Criminal Code specifies that “whoever by force compels, or by any deceitful means, or by abuse of authority or any other means of compulsion, induces any person to go from any place, is said to ‘abduct’ that person.” Thus, the crime of abduction criminalizes the taking of an individual without his/her consent. Section 331 of the Criminal Code, on the other hand, specifies that “whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said ‘wrongfully to confine’ that person”. The crime of wrongful confinement, thus criminalizes the keeping or confining of an individual without his/her consent.

Further, neither the crime of abduction nor the crime of wrongful confinement is constituted when those responsible for the arrest or detention have the lawful authority to arrest and/or detain, such as the case of law enforcement authorities. “Under the definition of enforced disappearance contained in the Declaration, the criminal offence in question starts with an arrest, detention or abduction against the will of the victim, which means that the enforced disappearance may be initiated by an illegal detention or by a legal arrest or detention.”16 Thus, many acts that amount to an enforced disappearance would not constitute either abduction or wrongful confinement.

urther, many actions that would constitute abduction or wrongful confinement, would not also constitute an enforced disappearance. As described above, the criminality of enforced disappearance does not lie in the act of taking someone, or the holding of someone illegally. Instead, the crime of enforced disappearance criminalizes the taking of someone and/or the holding of someone when it is followed by the refusal to acknowledge that action.

In addition to the unique definitional characteristics of the crime of enforced disappearance, there is also a difference in the recognized gravity of the crime under international law. International human rights bodies in particular have characterized enforced disappearance as one of the gravest human rights violations.17

The unique definition combined with the particularly grave nature of the crime gives enforced disappearance its exceptional character and justifies its criminalization as a standalone crime.

D. Crime Against Humanity

Article 5 in the ICPPED states that “the widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequence provided for under such applicable international law.”

It is notable that Sri Lanka’s domestic law does not criminalize the widespread and systematic practice of enforced disappearance as a crime against humanity.18 As a result, enforced disappearance could only be tried as an ordinary domestic crime, even though its widespread and systematic use is regarded as one of the gravest crimes under international law.19 Such a situation has been found in international criminal practice to be “a travesty of law and a betrayal of the universal need for justice,” as it prevents the full prosecution of the crime as recognized under international law and fails to attach adequate condemnation and gravity.20

As a result, Parliament should insert a provision article into the Bill, which specifies that the widespread and systematic commission of enforced disappearance constitutes a crime against humanity. The crime against humanity of enforced disappearance should be criminalized as such.

E. Modes of Liability

Article 6 of the ICPPED specifies that each State Party “shall take the necessary measures to hold criminally responsible at least: any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance.” Additionally, it requires that States take all necessary measures to hold superiors criminally liable for enforced disappearances perpetrated by their subordinates if they knew or should have known that their subordinates were committing an enforced disappearance or were about to commit it.

Therefore, Sri Lanka has an obligation to implement, at a minimum, modes of liability including:
 Attempting to commit an enforced disappearance;
 Aiding or abetting another to commit an enforced disappearance;
 Participating in a conspiracy to commit an enforced disappearance;
 Ordering, soliciting, or inducing another to commit an enforced disappearance; and
 Superior responsibility for subordinates who commit an enforced disappearance.

Section 3 of the Bill states that a superior—under certain conditions detailed below—may be guilty of the offense of enforced disappearance. In addition, according to Section 4(1) of the Bill “any person who aids or abets the commission of any offence set out in Section 3, or conspires or attempts to commit any offence set out in Section 3, shall be guilty of an offence under this Act...” Section 4(2) then clarifies that “abet” and “conspiracy” have the same meaning as Sections 100, 101 and 113 A respectively, of the Penal Code. The following examines the extent to which modes of liability set out in Sections 3 and 4 of the Bill adequately cover the forms of participation delineated in article 6 of the ICPPED.

a) Attempting to Commit an Enforced Disappearance

Section 3 of the Bill explicitly provides that those who attempt to commit an enforced disappearance shall be criminally liable for the crime.

Under the Rome Statute, attempt refers to “taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions.”21 Sri Lankan courts have interpreted attempt to refer to the taking of substantial steps beyond mere preparation towards commission of a crime.22 What would constitute a substantial step differs from one case to another. However, in most cases, courts have held that the person is liable if he/she has performed all acts required to commit the crime, yet the crime is not completed for reasons beyond the individual’s control.23 In other cases, courts have held that the offense is considered to have been attempted when the person performed all acts necessary to commit the offence except the penultimate and antepenultimate acts.24 In this respect, the threshold for a step to be considered substantial under domestic law is higher than that required by the Rome Statute.

Under Sri Lankan law,25 unlike in the Rome statute,26 if the contribution is sufficiently substantial, an attempt to commit the offense is constituted even if the person has had a change of mind and decided to refrain from committing the offence. Since the threshold for what constitutes a “substantial” step is very high under Sri Lankan law, even if the person changes his/her mind, he/she would already have taken all the steps for the offense to be committed. This explains why, at that point, the change of mind becomes irrelevant.

In light of the definition of the Bill and domestic jurisprudence on attempt, a person could, for example, be found guilty of attempting to commit the crime of enforced disappearance if he/she has deprived a victim of liberty and has taken steps towards concealing that deprivation of liberty.

b) Aiding, Abetting, to Commit an Enforced Disappearance

The jurisprudence of international tribunals has interpreted aiding and abetting to mean providing practical assistance, encouragement or moral support to a principal offender of a crime, which substantially contributes to the perpetration of the crime.27 The abettor must have the knowledge or awareness that his/her actions or omissions would assist the commission of an offense.28

Under Section 100 of the Penal Code aiding and abetting includes instigating, engaging in a conspiracy and finally intentionally aiding, by any act or illegal omission, the doing of a thing. This form of abetting substantially corresponds to abetting in international law.29 However, it must be noted that under international law aiding and abetting may be constituted when the action or omission of the abettor takes place before, at the time of, or after the commission of a crime.30 This is not the case for abetting under Section 100 of the Penal Code, which does not cover acts or omissions that took place after the commission or attempted commission of a crime.31 However, this difference is not material regarding enforced disappearances, which are continuing offenses in nature. Thus, a person may be liable for abetting an enforced disappearance if he/she provides assistance from the time the person was deprived of his/her liberty and until his/her fate was ascertained.

c) Conspiracy to Commit an Enforced Disappearance

International tribunals have interpreted conspiracy to mean the agreement to commit an offence. For conspiracy to be committed, the commission of the offense is not required. In addition, conspiracy does not require that any further action be taken in pursuance of the agreement.32

According to Section 113 A of the Penal Code, conspiracy refers to a situation where:

Two or more persons agree to commit or abet or act together with a common purpose for or in committing or abetting an offence, whether with or without any previous concert or deliberation, each of them is guilty of the offence of conspiracy to commit or abet that offence, as the case may be.

Similarly, the offence need not have been committed for conspiracy to be constituted. The elements of conspiracy under the Sri Lanka Penal Code are therefore substantially the same as those recognized under international criminal law.

d) Orders, Solicits, or Induces the Commission of Enforced Disappearance

According to the ICPPED, those who order, solicit or induce the commission of an enforced disappearance shall be held criminally liable for this crime.

Under international criminal law, ordering “requires that a person in a position of authority instructs another person to commit a crime”.33 A formal superior-subordinate relationship between the two persons is not required.34 It is sufficient that the person giving the order possesses authority either in law or in fact to order the commission of the crime.35 In terms of the mens rea, the accused “must intend to bring about the commission of the crime, or have been aware of the substantial likelihood that the crime would be committed as a consequence of the execution or implementation of the order”.36

Ordering as a mode of liability does not exist under Sri Lankan law. As explained in SACLS’ publication “Fitting the Bill; Incorporating international crimes into Sri Lankan Law”, in several Sri Lankan cases, those who gave orders for the commission of a crime have been indicted and convicted37 under Sections 113 A and/ or 102 and/ or 32 which respectively deal with conspiracy, abetment and common intention.

The Bill explicitly refers to conspiracy as defined by Section 113 A of the Penal Code as a mode of liability for enforced disappearances. While conspiracy under Section 113 A may cover instances of ordering, the latter is a discrete and independent mode of responsibility in international criminal law. It is therefore recommended that ordering be explicitly provided for as a mode of responsibility for enforced disappearance.38

In international criminal law, soliciting and inducing are forms of instigation. Instigation according to the jurisprudence of the ICTY and the ICTR refers to “prompting”39 or “urging or encouraging”40 someone to commit a crime.

Under Section 100 of the Penal code instigating is a form of abetting and refers to the “wilful misrepresentation or wilful concealment of a material fact which the person is bound to disclose [to] voluntarily causes or procures, or attempts to cause or procure, a thing to be done”41. In Van Rooyen v Obeysekera, instigating has been further interpreted to mean ‘to goad or urge forward or to provoke, incite, urge or encourage to do an act, by usage now of an evil act.”42

Therefore, instigating under Section 100 of the Penal Code has a narrower scope than instigating under international criminal law since it requires a wilful misrepresentation of concealment of a material fact. However, other forms of soliciting and inducing may be covered under Section 113 A on conspiracy.

e) Superior and Command Responsibility

Section 3(3) of the Bill, extends criminal liability to the superiors of those who commit the crime of enforced disappearance as defined under Sections 3(1) and 3(2). This section reflects the language in ICPPED article 6(b). To be held criminally liable under this section, a number of conditions must first be fulfilled. First, the superior must exercise “effective authority and control” over the subordinate committing the crime. Section 25 of the Bill defines “effective authority and control” as the “power to issue orders to subordinates and the capacity to ensure compliance with such orders.” Second, the superior must exercise “effective responsibility for and control over” the acts that constitute the enforced disappearance. Finally, the superior must have failed to take “all necessary and reasonable measures” to prevent or repress the commission of the enforced disappearance, including to submit the matter to law enforcement for investigation and prosecution. It is notable that the superior could be guilty of the crime of enforced disappearance even if the subordinate has not yet committed the crime, but is about to commit the crime, and the superior fails to take all necessary and reasonable measures to prevent the subordinate from committing it.

Although this language reflects the language Article 6(b) of the ICPPED, a number of interpretive ambiguities exist with respect to this provision. First, the definition of “effective authority and control” in Section 25 of the Bill does not clarify whether “power” and “capacity” is legal power and legal capacity or actual power and actual capacity. Legal power/capacity means that the superior’s power and capacity over his/her subordinate is given by law. Alternatively, actual power and actual capacity refers to the ability of an individual to exercise authority and control over another individual even if there is no legal power to do so. Moreover, “effective responsibility” in Section 3(3) (b) of the Bill is left undefined, leading to further ambiguity as to when this requirement would be satisfied. The ICPPED does not provide any guidance with respect to these ambiguities. 

The term “effective” in the expression “effective control” has been interpreted by international criminal tribunals as referring to the material ability to prevent or punish the commission of the offence.43 Therefore the superior need not have legal authority or control over the person who committed the offence, to be held responsible, providing the other conditions are met.44

A similar interpretation of the term ‘effective’ must be expressly stated in the Bill to ensure that Section 3(3) read in conjunction with Section 25 is in accordance with international standards. This is all the more important that the Sinhala version of the Bill, which is the controlling version, omits to translate the word “effective” under both Section 3(3)(a) and Section 3(3)(b) and refers instead to “authority and control” in Section 3(3)(a) and to “power and responsibility to control” in Section 3(3)(b). 

f) Recommendation

While the modes of responsibility provided for in the Bill generally cover recommended modes of liability in the ICPPED, the above analysis highlights two shortcomings that must be addressed:

1. Ordering must be provided for as a discrete mode of liability.
2. Section 25 should be amended to specify that “effective” in the expressions “effective authority and control” and “effective responsibility for and control over” covers both de jure and de facto (legal and actual) authority, responsibility and control.

III. Criminal Procedure Relating to Enforced Disappearances

A. Sentencing

The penalties for committing the crime of enforced disappearance in Sections 3(1)-3(3) provided for under each paragraph respectively. Section 3 specifies that an individual found to be guilty of the crime of enforced disappearance under either paragraphs 3(1), 3(2), 3(3), or 4(1), is subject to a prison term not exceeding 20 years and shall also be subject to a fine between five hundred thousand rupees and one million rupees.

Article 7 of the ICPPED establishes that Convention States must institute appropriate penalties that take into account the extreme seriousness of the crime of enforced disappearance. However, the ICPPED does not explicitly establish a sentencing range and grants member States discretion in determining which penalties are appropriate. This is in recognition that minimum and maximum criminal penalties vary widely in various domestic criminal systems. With respect to the Declaration, which contains identical wording as the ICPPED,45 the WGIED specified that sentencing guidelines that impose sentences of imprisonment between 25-40 years are consistent with international best practice.46 It additionally found that removing the perpetrators from administrative service, if they are in such service to be consistent with international law. 

Under the Sri Lanka Penal Code, the maximum penalty for any conviction is the death penalty. However, death sentences have not been carried out in practice since 1976.

Even though the penalties established in the Bill are indeed severe, a reviewing international body may find that the penalties established by the Bill fall short of meeting international standards. This is because the crime of enforced disappearance may not be viewed as attracting penalties consistent with the crimes considered to be the most serious offenses under the Penal Code. As such, amendment to Article 4 would be advisable. Such an amendment could come in the form of an additional provision that provides additional penalties of imprisonment in the event of aggravating circumstances. Article 7 of the ICPPED states that aggravating circumstances would be appropriate, in particular in the event of death of the disappeared person or the commission of an enforced disappearance in respect of pregnant women, minors, persons with disabilities or other particularly vulnerable persons.

B. Cognizable and Non-Bailable Offence

Section 5 establishes that the crime of enforced disappearance shall be considered a cognizable and non-bailable offence in line with the Code of Criminal Procedure Act of 1975 (“CCP”). According to Chapter I of the CCP, a cognizable offence is an offence where an officer may arrest a suspect without a warrant. This allows an officer to arrest an individual suspected of committing an enforced disappearance without first requiring that he/she receives an order from a Magistrate to this effect. A “non-bailable” offence under the CCP is an offence for which the High Court has the discretion to grant or refuse bail pending trial. Thus, in order to be released on bail, an individual accused of an enforced disappearance must first make an application to the High Court. 

C. Duration of the Crime and Criminal Procedure

The WGEID specifies in its General Comment on the nature of enforced disappearance as a continuous crime that:

Enforced disappearances are prototypical continuous acts. The act begins at the time of the abduction and extends for the whole period of time that the crime is not complete, that is to say until the State acknowledges the detention or releases information pertaining to the fate or whereabouts of the individual.47 

In order to comply with the ICPPED, judicial actors will have to take into account the continuous nature of the crime of enforced disappearance. Critically, this means correctly identifying the beginning of the crime and the end of the crime. As specified above, the crime begins at the start of a deprivation of liberty and ends once the deprivation of liberty is acknowledged and information pertaining to the fate or whereabouts of the disappeared individual has been released.48 This will have critical implications for the applicability of the law to crimes that commenced before its entry into force. It will also have implications for the application of a prescription period to claims that are brought under the Act.

1. The Prescription Period on Claims

According to the ICPPED, a State Party may establish a prescription period for the crime of enforced disappearance as long as it takes the “necessary measures” to ensure that the prescription period “is of a long duration and is proportionate to the seriousness of the offence” and “commences from the moment when the offense of enforced disappearance ceases, taking into account its continuous nature”.49

The Bill does not specify the prescription period that applies to offenses contained in the Bill. However, under section 456 of the CCP, all criminal offenses other than murder and treason have a prescription period of twenty years. Thus, the prescription period for the crime of enforced disappearance is also twenty years. Therefore, a prosecution can be initiated with respect to an enforced disappearance until twenty years has lapsed since completion of the crime.

Under international law, the crime of enforced disappearance is not completed until there is official acknowledgment of the deprivation of liberty and clarification of the fate and whereabouts of the disappeared individual. Thus, if applied in accordance with international law, claims can be brought until twenty years following the acknowledgment of the deprivation of liberty or the clarification of the fate and whereabouts of the individual. Further, if there is an ongoing refusal to acknowledge the deprivation of liberty, the prescription period has not yet begun to run. So long as the prescription period is indeed applied in this way, it would likely be deemed to comply with international standards if reviewed by an international body.

2. Application of the Bill to Crimes that Commenced Prior to Enactment

The continuous nature of the crime of enforced disappearance means that the crime is ongoing until the fate and whereabouts of the person have been ascertained. Taking this into account, the Bill should apply to crimes that were ongoing at the date when the Bill was passed. Those are crimes that began but have not been completed prior to the passing of the Bill. In practice, this means that the Bill ought to apply to situations where a person has been deprived of his/her freedom and his/her fate has still not been ascertained. This is because under international law, the crime of enforced disappearance begins when the deprivation of liberty begins. As explained above, the crime continues until there is an acknowledgement of the deprivation of liberty.

Although the Bill should apply to crimes that begun prior to the Bill’s entry into force and are continuing, in practice an indictment cannot be issued in respect of crimes that commenced before the entry into force of the act criminalizing them. For this reason, it would be necessary to specifically provide for the retroactive application of the provisions in the Bill pertaining to the investigation and prosecution of the crime.

3. Retroactive Application of Provisions Pertaining to the Investigation and Prosecution of Enforced Disappearance

Article 13(6) of the Constitution prevents the retroactive application of criminal law in the following terms:

No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed.

It however specifies that:

Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.

Therefore, according to this provision, acts or omissions that were recognised as criminal by the community of nations prior to their commission may be tried and punished even though they were not criminal under Sri Lankan law at the time of their commission.50 In the Attorney General v Sepala Ekanayake case, the Court of Appeal relied on this provision to uphold the retroactive application of the Offenses Against Aircraft Act of 1942.51

The crime of enforced disappearance should fall under this exception because the conduct constituting an enforced disappearance has long been considered criminal according to the general principles of law recognized by the community of Nations. In fact, acts constituting an enforced disappearance have be deemed to constitute a war crime by the Nuremberg Tribunal.52 This is significant because crimes recognized by the Nuremberg Tribunal are considered to form part of general principles of international law recognized by the community of Nations.53 Therefore, the principle according to which acts constituting enforced disappearance entail criminal liability when committed in the context of an armed conflict has been accepted since Nuremberg. In 1992, the UN Declaration on the Protection of All Persons from Enforced Disappearance adopted by the UN General Assembly emphasizes that: “all acts of enforced disappearance shall be offences under criminal law punishable by appropriate penalties which shall take into account their extreme seriousness.”54 Therefore, since 1992, acts of enforced disappearances are deemed criminal by general principles recognized by the community of Nations, even when committed outside the context of an armed conflict.

Not only is the retroactive application of the Bill permissible under the Constitution, it is also required to give effect to Sri Lanka’s commitments under Human Rights Council Resolution 30/1 to incorporate the “full range of crimes under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and violations of international humanitarian law, including during the period covered by the Lessons Learnt and Reconciliation Commission”.55 As such, Parliament should insert a provision into the Bill amending domestic criminal procedure to allow for retroactive criminalization of enforced disappearance as a crime since at least 2002. In addition, as explained above, under the Sri Lankan Constitution, it would also be permitted to retroactively criminalize enforce disappearance since 1992.

D. Jurisdiction

The Bill gives jurisdiction to the High Court to try criminal cases of enforced disappearance and to hear petitions seeking the enforcement of rights recognized in the Bill or redress or remedy for their violation. While this is not problematic in itself, it is regrettable that the Bill does not create a Special Prosecutor’s Office to investigate and prosecute enforced disappearance as recommended by domestic commissions as well as the WGEID.

1. High Court Jurisdiction

Section 6(1) of the Bill specifies that the High Court of Sri Lanka in Colombo or the High Court for the Western Province in Colombo shall have exclusive jurisdiction to try cases that fall under Sections 3 and 4 of the Act.56 However, the fact that the exclusive jurisdiction is granted to the High Court seated in Colombo, rather than the High Court with its seat in a location closest to where the crime was committed may have practical implications for victims and witnesses, who may be required to travel long distances to be able to attend such hearings.57 This has the potential to be an onerous burden for many family members of the disappeared. According to Section 20 of the Bill, victims may also petition the High Court to seek the enforcement of other rights provided for in Sections 7, 14, 15, 16 or 19 of the Bill, as well as relief and remedy for their violation. Section 20 does not grant exclusive jurisdiction to High Courts seated in Colombo in this respect. The victims’ ability to vindicate his/her right before provincial High Courts is essential. In conformity with ICPPED article 8(1), Section 6(2) of the Bill establishes territorial, active personality, and passive personality jurisdiction over perpetrators of the crime of enforced disappearance. Specifically, Section 6(2) specifies that individuals suspected of committing the crime of enforced disappearance, whether Sri Lankan nationals or not, will be subject to the jurisdiction of domestic courts if they are found on any territory under the control of the Government of Sri Lanka. Further, domestic courts have jurisdiction over any Sri Lankan national suspected of committing the crime of enforced disappearance, whether in Sri Lankan territory or not. Finally, domestic courts may exercise jurisdiction over any individual, whether a Sri Lankan national or not, who is suspected of committing the crime against a Sri Lankan national.

2. Specialized Investigation and Prosecution

The Bill does not provide for a specialized and independent investigation and prosecution unit. However, without such a unit it is unlikely that Sri Lanka will be able to fulfill its obligation under the ICPPED, particularly Article 12, to investigate and prosecute the crime of enforced disappearance. In fact, the Commission of Inquiry into Involuntary Removal and Disappearances of Certain Persons recommend in its final report the setting up of a specialized Missing Persons Unit which should be tasked with the prosecution of these cases.58

Furthermore, the WGEID, following a mission to Sri Lanka in November 2015 noted the lack of progress on the investigation of enforced disappearance cases. It highlighted “severe problems relating to the investigation into enforced disappearances, including omissions, delays and lack of due diligence”.59 It further noted that the families of the disappeared completely lack faith in the administration of justice and that many are also afraid to cooperate with authorities for fear of being harassed, targeted for reprisals, or labeled as belonging to the LTTE.60 Based on its findings, the WGEID recommended that the government “guarantee that criminal investigations of enforced disappearances are conducted from the outset by a highly professional and specialized team of prosecutors”,61 so as to overcome systemic difficulties and ensure impartial and good faith prosecutions.

As a result, the establishment of such a unit is crucial to the faithful execution of key provisions in the Bill. Thus, the Bill should provide for the establishment of a specialized investigation and prosecution unit for enforced disappearances. This would be in line with the Sri Lankan government own commitment in this respect.62

E. Extradition, Mutual Cooperation and Assistance

As discussed above, enforced disappearances often involve individuals who occupy the upperechelons of social or political society. As a result, their capture and prosecution is made particularly difficult if there are no mechanisms in place to facilitate the cooperation of States in the investigation, capture, extradition, and prosecution of those responsible for enforced disappearances.

In this respect, Sections 7-13, and 18 of the Bill establish a framework for mutual cooperation with other States parties to the ICPPED, as well as other Commonwealth States for the investigation and prosecution of enforced disappearances, as well as the extradition of those accused or convicted of committing enforced disappearances.

This framework is in accordance with Sri Lanka’s obligations under articles 13 to 15 of the ICPPED.

1. Mutual Cooperation and Assistance

Section 7 protects the rights of non-nationals who are accused of a crime under the Bill in Sri Lanka. The article entitles a non-national to communicate with a representative of his/ her home State when faced with charges under the Act. Section 8 establishes that the Government of Sri Lanka will notify any State making an extradition request of the steps already taken or steps to be taken in respect of the prosecution or extradition of the person accused of offenses under the Act.

Section 9 establishes a legal framework for the mutual assistance and cooperation with respect to enforced disappearances between the Government of Sri Lanka, Convention States, Commonwealth countries, and countries with whom the Government of Sri Lanka has already entered into agreements of mutual assistance and cooperation. Section 9(1) extends the Mutual Assistance in Criminal Matters Act (MACM) to all offenses under the Act. Thus, under this provision, the Government of Sri Lanka will be able to request cooperation and assistance or provide cooperation and assistance in the investigation and prosecution of the crime of enforced disappearance in the form of:

 The location and identification of witnesses or suspects;
 The service of documents;
 The examination of witnesses;
 The obtaining of evidence, documents or other articles;
 The execution of requests for search and seizure;
 The effecting of a temporary transfer of a person in custody to appear as a witness;
 The facilitation of the personal appearance of witnesses;
 The provision of documents and other records;
 The location, of the proceeds of any criminal activity; and
 The enforcement of orders for the payment of fines or for the forfeiture of freezing of property.63

Section 9(2) provides the legal basis for mutual assistance and cooperation in the prosecution and investigation of offenses under the Bill with Convention States with which the Government of Sri Lanka has not already entered into a mutual assistance agreement covered by the MACM. Section 9(2) specifies that any mutual assistance and cooperation under this provision shall only apply to the extent necessary to discharge the Sri Lankan government’s obligations under the Act, and any grant of assistance may be subject to “such terms and conditions as the Minister thinks fit.”

2. Extradition

Further, Sections 10- 13 extend the Extradition Law framework to offenses under the Act. Section 18 additionally places limits on the ability to extradite individuals in the event they would be subject to a real risk of enforced disappearance as a result of the extradition.

Section 10 amends existing extradition agreements between the Government of Sri Lanka and any Convention State to cover offenses under the Act. Section 11 specifies that the Bill itself may be considered an extradition arrangement by Order of the Minister published in the Gazette, between the Government of Sri Lanka and any other Convention State with which the Government of Sri Lanka does not already have an extradition arrangement in place.

Section 12 specifies that the Extradition Law will apply to the offenses established by the Bill. However, Article 7(1)(a) of the Extradition Law specifies that a request for extradition must be refused if the offence for which a person is accused or convicted is an offence of a political character. However, Section 13 of the Bill expressly specifies that the offenses established by the Bill shall not be considered political offenses for purposes of the Extradition Law.64 Thus, the extradition of an individual accused or convicted of the crime of enforced disappearance cannot be refused on the basis that the crime is of a political character.65 It should be noted, however, that Section 13 states that the classification of the crime of enforced disappearance as a non-political crime only applies with respect to extradition proceedings. This leaves open the possibility that offenses under the Bill may be considered political offenses in other circumstances not relating to extradition proceedings.

Section 18 incorporates the principle of non-refoulement. Section 18(1) establishes that no person may be sent or returned to another State where there are substantial grounds for believing that such person will be subjected to an enforced disappearance. Section 18(2) elaborates that substantial grounds include any relevant consideration, such as a pattern of gross, flagrant, or mass violations of human rights or of serious violations of international humanitarian law. Additionally, Section 18(3) states that the Minister under the Bill may make regulations, which establish the criteria under which a person may be sent or returned to another State.

IV. The Rights Framework for Victims, Relatives, and those Deprived of Their Liberty

In addition to the criminal framework analysed above, the Bill also sets out a framework codifying victims’ right to the truth regarding past enforced disappearances and a framework to prospectively prevent the perpetration of future enforced disappearances.

A. The Right to the Truth
1. Scope of the Right to the Truth

Section 14(1) establishes the rights of the victims and relatives of victims to know the truth regarding an enforced disappearance. The right to the truth under this section includes the right to know 1) the circumstances that surround an enforced disappearance, 2) the progress and results of an investigation of an enforced disappearance, and 3) the ultimate fate and whereabouts of a disappeared individual.

Under international law, the right of the relatives to know the truth of the fate and whereabouts of disappeared persons is an absolute right. Therefore, it cannot be limited or derogated from, even in exceptional circumstances.66 The WGEID has also interpreted the right to the truth to include the right to know the identity of the perpetrators.67 However, this aspect of the right has not been explicitly included in the Bill. The Bill should therefore be amended to specifically provide for such right.

The right to truth established under Section 14 may be distinguished from the right to information set out in Section 16(1), in the sense that section 14 relates to cases where an enforced disappearance has taken place. The right to information granted in Section 16(1), on the other hand, seeks to prevent the commission of an enforced disappearance in the first instance by ensuring that relatives of a person deprived of liberty or a representative or attorney have a right to relevant information regarding the deprivation of liberty.

2. Freedom of Assembly and Association

Section 14(2) establishes the right of victims and families of victims to form associations or organizations as well as participate in associations or organizations tasked with establishing the circumstances of offenses related to enforced disappearances. This right includes the right to form associations for the purpose of identifying the circumstances surrounding enforced disappearances and the fate and whereabouts of disappeared individuals. This right however, is subject to restrictions placed by law on the right of association.

The freedom of association and assembly is guaranteed by the Constitution in Article 14.68 However, both these freedoms are also subject to limitations and restrictions under the Constitution as well as the Prevention of Terrorism Act (PTA). Under the Constitution, freedom of assembly may be restricted on the basis of the “interests of racial and religious harmony.”69 Further, freedom of association may also be restricted on the basis of the “interests of racial and religious harmony” in addition to the “national economy.”70 Both the freedom of assembly and the freedom of association may also be restricted in the “interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society.”71 The PTA also places restrictions on the freedom of assembly and association in the event an individual is suspected of aiding, abetting, conspiring, attempting, exhorting or inciting a terrorist offense as defined by Section 2(1).72

Under Article 21 of the International Covenant on Civil and Political Rights to which Sri Lanka is party, only restrictions that are “necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others may be place on the right to Assembly”.73 Therefore, Sri Lanka is not compliant with its international obligations due to the many of limitations imposed by law and under the Constitution to the right to peaceful assembly.

3. Duty to Investigate

Finally, Section 14(3) establishes a duty on law enforcement authorities to investigate enforced disappearances where there are reasonable grounds to believe that an enforced disappearance has taken place. This duty complements victims’ right to know the truth. However, this duty exists whether or not a formal complaint by the family has been made. 

Section 14(4) defines the scope of the duty to investigate established in Section 14(3). It states that law enforcement must make all appropriate efforts to search for, locate, and release a person who has been forcibly disappeared or is being held in secret detention. Where an individual has died while in custody, law enforcement must locate and return the remains, while affording the diseased with appropriate respect. It should be noted that the clause “all appropriate efforts” indicates an obligation of means rather than result, in that law enforcement is not obligated to go beyond its legally established power or that beyond its capacity to establish the fate and whereabouts of the victims. Therefore, law enforcement authorities will fulfill this obligation, even if they are unable to locate or return victims of enforced disappearances, so long as they are deemed to have taken all appropriate measures in their search but yet were still unable to clarify the case. This is consistent with international standards. In fact, the WGEID clearly explains that “there is an absolute obligation to take all the necessary steps to find the person, but there is no absolute obligation of result”.74

In addition, according to international law, to satisfy the duty to investigate, States should seek to establish the crime as well as the conditions and circumstances under which it was committed, including acts completed in preparation and subsequent acts of concealment; the reasons the crime was committed; and the identity and degree of participation of those involved in the commission of the crime.75 Further, it has also been observed by international human rights bodies that investigations of enforced disappearances must be criminal in nature and they must be oriented toward the prosecution of those responsible.76 International jurisprudence has confirmed that truth commissions or commissions of inquiry do not relieve the State from its obligation to criminally investigate those responsible for enforced disappearances with the intention of bringing perpetrators to justice.77 Finally, given the continuing nature of the crime, the obligation to investigate “subsists while the uncertainty of the final fate of the disappeared person remains, because the right of the victim’s next of kin to know his or her fate and, if applicable, the whereabouts of his or her remains, is a fair expectation that the State must satisfy by all available means.”78

Although the wording in Section 14 of the Bill reflects the wording in the ICPPED, Parliament should consider amending the provision to explicitly state that investigations regarding the fate and whereabouts of the disappeared includes an investigation into and identification of those responsible for perpetrating the crime of enforced disappearance. As stated above, this is based on international jurisprudence regarding the implicit scope of the duty to investigate including under the ICPPED.

B. Freedom from Secret, Incommunicado, Unannounced, and Unacknowledged Detention

Section 15(1) establishes the right of individuals who are deprived of their liberty to not be held in secret detention. This means that the State may not hold an individual in any place that is not an officially recognized place of detention, such as a private residence, a military camp or base, a secret prison site, or a hidden section of a larger prison or military facility.79

Section 15(2) sets forth the right to be free from incommunicado detention. More specifically, it establishes the rights of the detained individual to communicate with and be visited by their family, government officials, and legal counsel. However this section provides that this right shall be “subject to the conditions established by written law”. This is very problematic as this right could be restricted by other written laws to such an extent that it ceases to offer protection against abuse in detention or against incommunicado detention for a period of time. This provision should therefore be amended to remove this limitation.

Additionally, Section 15(3) grants law enforcement authorities and the Human Rights Commission access to all places of detention or other places where persons are being deprived of their liberty.

In support of the freedom to be free from secret, incommunicado, and unacknowledged detention, Section 15(4) obliges law enforcement authorities to compile and maintain registers and records of all of those who have been detained. Law enforcement authorities are obligated to record, specifically:

 the identity of the person detained;
 the date, time, and place of the detention;
 the date, time, and place of admission into detention
 the authority responsible for overseeing the location of admission
 the authority that ordered the detention
 the authority responsible for overseeing the detention
 the grounds on which detention was executed;
 information relating to the health of the individual detained
 in the event of release, the date of release
 in the event of a transfer, the destination where the individual was transferred and the authority responsible for such transfer
 in the event of death, the circumstances that led to the death and the cause of death, as well as the destination of the remains

The wording of this provision itself does not suggest that the register must be centralized. It may instead be a decentralized system of different registers. Decentralized registers may impede access to information about those detained by their family and their legal counsel. Concerned parties may not know where to seek the relevant information about the detainee, unless each detention facility proactively informs the family or immediately allows for communication between the detainee and the family members as required under Section 15(2). Further, as drafted, there is an ambiguity as to whether the requirement to maintain a register applies to all detainees or only to those who will be detained in the future. The Bill must therefore be amended to specify that there is an obligation to compile and maintain up-to-date official registers or records of all persons deprived of liberty.

Section 15 (4) of the Bill does not specify the time frame within which information about the detainee must be entered into a register. It is important that this is explicitly provided for under the Bill, as the failure to register the information may be construed as a failure to acknowledge the detention and/or to disclose the whereabouts of the person. This may trigger criminal responsibility for enforced disappearance under Section 3 of the Bill. In this respect, a “matter of days” is a reasonable time frame.80

Section 16(1) complements the rights in Section 15 and establishes that relatives and legal counsel of those who are detained have a right to access certain information surrounding that individual’s detention, including:

 the authority who ordered the deprivation of liberty
 the authority responsible for supervising the deprivation of liberty
 the date, time, and place where the person was deprived of liberty and admitted to the place of deprivation of liberty
 The current whereabouts of the person deprived of their liberty, including details regarding any transfers that took place, such as the destination and authority responsible for the transfer.
 The date, time, and place of release
 Details regarding the state of health of the person deprived of their liberty, and
 In the event of death during the deprivation of liberty, the circumstances and cause of death, as well as the location of the remains.

The drafting of this provision suggests that access to information would be upon request of the detainee’s relatives or legal counsel. Therefore, this places a burden to take proactive steps towards seeking the information on the relatives and legal counsel, rather than placing a duty on the detaining power to automatically inform the relatives or legal counsel of information relating to the detention. This provision should therefore be amended as follows: “Any relative of a person deprived of liberty, the representative of a person deprived of liberty or an attorney-at-law of a person deprived of liberty shall have the right to be provided the following information”.

Section 16(2) protects individuals deprived of their liberty from ill-treatment including torture, inhumane, humiliating, and degrading treatment. It also specifically protects those participating in the investigation of a suspected enforced disappearance, to be free from ill-treatment, intimidation, reprisals, or any sanctions associated with the search for information with respect to the fate of the disappeared person.

Section 16(3) establishes that any individual under Section 16(1) has a right to a “prompt and effective judicial remedy” to obtain the information pertaining to Section 16(1). This grants individuals the right to receive judicial review in their particular case, and not merely non-judicial examination or investigation of the case. Additionally, the Bill establishes that this right is unconditional and cannot be suspended or restricted for any reason.

C. Criminalization of Rights’ Violations

Following from the rights and obligations established in Sections 14, 15, and 16, Section 17 establishes a framework for the punishment of individuals who seek to hinder investigations of an enforced disappearance.

Section 17(1)(a) and (b) criminalize interference with, or influence over, an investigation into an enforced disappearance under the Act. Acts of influence include applying pressure on, attempting to intimidate, or launch reprisals aimed at: the complainant, any witness, the relatives of the disappeared person, or their attorney, or any person participating in the investigation of an enforced disappearance.

Section 17(1)(c) provides that it is an offense for persons responsible for the register to intentionally fail to record a deprivation of liberty or intentionally record inaccurate information of an individual deprived of their liberty. Finally, Section 17(1)(d) criminalizes the refusal to provide information on a person’s deprivation of liberty or the provision of inaccurate information. This section also specifies that this conduct is criminal notwithstanding that the legal requirements for providing such information have been met.

A person guilty of an offense under Sections 17(a)-(d) may be sentenced to a minimum imprisonment of seven years and additionally to a maximum fine of five hundred thousand rupees.

D. Enforcement of Rights Framework

Sections 20-25 pertain to matters of enforcement and interpretation of Sections 7, 14, 15, 16, or 19.

Section 20(1) allows any person with a “legitimate interest” to make a petition to the High Court for the enforcement of Sections 7, 14, 15, 16, or 19 and receive relief or redress in respect of these Sections. The Section specifies that it is without prejudice to any other legal remedy, judicial or otherwise that the petitioner may receive with respect to the same matter. According to Section 20(2), the High Court must be petitioned within three months from the date of the discovery of the non-enforcement of Sections 7, 14, 15, 16, or 19. In order to receive assistance in respect of such petition, the High Court may request that the Human Rights Commission make an inquiry and a report regarding such matter within the timeframe requested by the Court.81

Finally, Section 20(4) gives the High Court discretion to grant the relief a complainant requests in his/ her petition or to provide another relief as seems “just and equitable” in the circumstances of the case. Yet, Section 20(5) provides that the High Court decision may be appealed before the Supreme Court within six weeks.

V. Conclusion

The Bill seeks to give effect to Sri Lanka’s obligation under the ICPPED by incorporating the rights provided for under the Convention into domestic law and criminalizing the crime of enforced disappearance. As explained in this commentary, the Bill is overall successful in doing so. However, the analysis of the Bill has shed light on a few fundamental flaws that must be remedied in order to give full effect to the ICPPED and to enable the prosecution of those responsible for the crime of enforced disappearance. The following summarizes the main recommendations for amendment to the Bill.

1. As explained in this commentary, the definition of enforced disappearance in the Bill does not enable the prosecution of the full range of perpetrators that would, under international criminal law, be responsible for committing an enforced disappearance. This is because, under the Bill, the first element (the deprivation of liberty) and the second element (the failure or refusal to acknowledge the deprivation of liberty) must be committed by the same person. It need not be the case under international criminal law. Therefore, the definition of enforced disappearance in the Bill should be amended to criminalize two scenarios where an individual would have committed an enforced disappearance:

1) The perpetrator deprives an individual of his/ her liberty and the deprivation of liberty is accompanied or followed by a refusal to acknowledge the deprivation of liberty. The perpetrator knew that the deprivation of liberty would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of liberty or to give information on the fate or whereabouts of the person.

2) The perpetrator refused or failed to acknowledge a person’s deprivation of liberty or to give information on the fate or whereabouts of that person. And the perpetrator knew that his/her refusal was preceded or accompanied by the person’s deprivation of freedom.

2. The crime against humanity of enforced disappearance should be criminalize.

3. The Bill should be amended to provide for ordering as a discrete mode of responsibility as required by the ICPPED.

4. The exact scope of superior responsibility under Section 3(3) of the Bill should be clarified. To this end, Section 25 should be amended to specify that “effective” in the expressions “effective authority and control” and “effective responsibility for and control over” covers both de jure and de facto authority, responsibility and control.

5. Amendments to Section 3 should also be considered to provide for additional penalties in the event of aggravating circumstances such as the death of the disappeared person or the commission of an enforced disappearance in respect of pregnant women, minors, persons with disabilities or other particularly vulnerable persons.

6. Section 3 of the Bill should also be amended to specifically allow for retroactive criminalization of enforced disappearance as a crime since 1992 or at the very least since 2002.

7. Section 6 (1) of the Bill should be amended to provide for a specialized investigative and prosecution unit for crimes of enforced disappearances. Amendments should also be considered to give jurisdiction to Provincial High Courts to try enforced disappearances.

8. Section 14 of the Bill should be amended to explicitly specify that investigations into the fate and whereabouts of individuals who have allegedly been forcibly disappeared should include an investigation into and identification of those responsible for perpetrating the crime of enforced disappearance.

9. Section 15 (2) of the Bill should be amended to provide unrestricted right to access to legal counsel in detention “notwithstanding anything to the contrary in any other law”.

10. Section 15(4) of the Bill should be amended to specify that: “Law enforcement authorities shall assure the compilation and maintenance of up-to-date official registers or records of all persons deprived of liberty. These registers or records should be centralized in a national register”.

11. Section 16(1) of the Bill should be amended as follows: “Any relative of a person deprived of liberty, the representative of a person deprived of liberty or an attorney-at-law of a person deprived of liberty shall have the right to be provided the following information”.

 END NOTES

1 UN General Assembly, Declaration on the Protection of All Persons from Enforced Disappearances, (A/RES/47/133, 12 February 1993) [ED Declaration].

2 Working Group on Enforced or Involuntary Disappearances, ‘Promotion and Protection of All Human Rights, Civil, Political, Economic, Social And Cultural Rights, Including The Right to Development (A/HRC/7/2, 10 January 2008) ¶26; International Commission of Jurists, ‘Enforced Disappearance and Extrajudicial Execution: Investigation and Sanction A Practitioners Guide’ (2015) available at http://icj.wpengine.netdna-cdn.com/wpcontent/uploads/2015/12/Universal-Enforced-Disappearance-and-Extrajudicial-Execution-PGNo9-PublicationsPractitioners-guide-series-2015-ENG.pdf [Practitioner’s Guide].

3 Working Group on Enforced or Involuntary Disappearances, Report Addendum, ‘Best practices on enforced disappearances in domestic criminal legislation (A/HRC/16/48/Add.3, 28 December 2010) ¶ 35 [Best Practices]; Practitioner’s Guide, supra 2.

4 ED Declaration, supra 1, article 17.1: “acts constituting enforced disappearance shall be considered a continuous offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remain unclarified.”

5 Best Practices, supra 3, ¶¶ 33-34.

6 Working Group on Enforced or Involuntary Disappearances, ‘General Comment on Enforced Disappearance as a Continuous Crime’ (A/HRC/16/48, 26 January 2011) ¶ 1. [General Comment on the Continuous Nature of the Crime].

7 Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, article 7 [Rome Statute]: enforced disappearance is a crime against humanity if it is committed as part of a widespread and systematic attack against the civilian population. The ED Declaration, supra 1 does not contain a definition of enforced disappearance as a crime against humanity. However, the Working Group on Enforced and Involuntary Disappearances has subsequently defined the crime in a General Comment: Working Group on Enforced Disappearances, ‘General Comment on enforced disappearance as a crime against humanity’ (A/HRC/13/31, 21 December 2009), ¶ 39.

8 It must be noted however that the ICPPED requires the State to take appropriate measures to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice: International Convention for the Protection of All Persons from Enforced Disappearance (20 December 2006) article 3 [ICPPED].

9 A Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance; to ensure the right to Justice and Reparation to Victims of Enforced Disappearance; and to provide for matters connected therewith or incidental thereto (9 February 2017),article 3(1)(a): “arrests, detains, wrongfully confines, abducts, kidnaps, or in any other form deprives any other person of such person’s liberty...”, article 3(2)(a): “wrongfully confines, abducts, kidnaps or in any other form deprives any other person of such person’s liberty” [ED Bill]

10 See infra section C for a thorough analysis of the differences between enforced disappearance and other offenses under the criminal code.

11 Best Practices, supra 3, ¶¶ 22-24.

12 Dalia Vitkauskaitė-Meurice, Justinas Žilinskas, ‘The Concept of Enforced Disappearances in International Law’ (2010) Jurisprudence 2(120) available at https://www.mruni.eu/upload/iblock/934/9Vitkauskaite_Meurice.pdf p. 205 [ED in International Law]; Gerhard Werle, Principles of International Criminal Law (TMC Asser Press, 2005) pp. 260–261. 13 ED in International Law, supra 12, p. 205.

13 ED in International Law, supra 12, p. 205.

14 International Criminal Court, Elements of Crimes (2011) ISBN No. 92-9227-232-2, article 7(1)(i)(3)(a) [ICC Elements of Crimes].

15 Ibid, article 7(1)(i)(3)(b).

16 Working Group on Enforced and Involuntary Disappearances, ‘General Comment on the definition of enforced disappearance’ (A/HRC/7/2, 10 January 2008), ¶ 7.

17 See, e.g., Velásquez Rodríguez v Honduras, Inter-American Court of Human Rights (IACrtHR), Series C, No. 4 (1988); Goiburú et al. v Paraguay, Inter-American Court of Human Rights (IACrtHR), Series C, No. 153 (22 September 2006) ; Cifuentes Elgueta v Chile, Human Rights Committee, Communication No. 1536/2006, U.N. Doc CCPR/C/96/D/1536/2006 (July 2009); Boucherf v Algeria, Communication No. 1196/2003, Human Rights Committee (30 March 2006); Katwal v Nepal, , Communication No. 2000/2010, Human Rights Committee (decision on admissibility of 10 October 2012); Janowiec and others v Russia, Applications nos. 55508/07 and 29520/09, European Court of Human Rights (ECtHR) (21 October 2013); Aslakhanova and others v Russia, Applications nos. 2944/06 and 8300/07, 50184/07, 332/08, 42509/10, European Court of Human Rights (ECtHR) (18 December 2012); El-Masri v the Former Yugoslav Republic of Macedonia, Application no. 39630/09, European Court of Human Rights (ECtHR), Grand Chamber (13 December 2012).

18 See Dr. Isabelle Lassee & Eleanor Vermunt, ‘Fitting the Bill: Incorporating International Crimes into Sri Lankan Law’ (2016), South Asian Centre for Legal Studies, available at http://sacls.org/resources/publications/reports/fitting-the-bill-incorporating-international-crimes-into-sri-lankan-law  [Fitting the Bill].

19 Ibid; Prosecutor v Dusko Tadic (Appeal Judgment, IT-94-1-A), ICTY, 15 July 1999.

20 Fitting the Bill, supra 18; Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v Tadic (Appeals Chamber, IT-94-1-A), ICTY, 2 October 1995, ¶ 58.

21 Rome Statute, supra 7, article 25(3)(f).

22 The courts have declined to impose responsibility on the ground that the accused conduct constituted only preparatory acts in Kensigton v Edirisinghe (1986) 3 N.L.R 316 cited in G.L Peiris, General Principles of Criminal Liability in Sri Lanka: A Comparative Analysis(Stamford Lake 1999) p. 358 [Peiris] See also Silva (1923) 24 N.L.R 493.

23 Fernando (1912) 15 N.R.L 106; Ramachandran (1962) 64 NRL 512; Fernando (1945) 30 CLW 79 cited in Peiris, supra 22, p. 371.

24 The stage of proximity was identified to be the last one which had to be performed by the accused. See in this regard Peiris, supra 22, p. 37.

25 Peiris, supra 22, p. 369 citing Hope v Brown (1954) I WLR 250

26 Rome Statute, supra 21, article 25(3)(f)

27 Prosecutor v Zejnil Delalic et al. (“Čelebici”), (Trial Judgment. IT-96-21-T ), ICTY, 16 November 1998, ¶ 327 [Celebici]; Prosecutor v Nahimana, (Appeals Chamber , ICTR-99-52-A) ,

28 November 2007, ¶ 482 28Prosecutor v Mitar Vasiljevid, (Appeal Judgment, IT-98-32-A), ICTY, 25 February 2004, ¶ 102; Prosecutor v Blaškid, (Appeal Judgment, IT-95-14-A) , ICTY,

29 July 2004 ¶ 49 [Blaskic] 29 See section 101 and 102 of the Penal Code of Sri Lanka (1883 as amended)

30 Prosecutor v Vidoje Blagojevid and Jokid, (Appeal Chamber , IT-02-60-A) , ICTY, 9 May 2007, ¶ 127; See Prosecutor v Blaškid, supra 28, ¶ 48; Prosecutor v Naletilid et al, (Trial Chamber , IT-98-34-T) , ICTY,

31 March 2003, ¶ 63; Prosecutor v Moinina Fofana, Allieu Kondewa (the CDF Accused), (Appeal Judgment, SCSL-04-14A), Special Court for Sierra Leone, 28 May 2008, ¶ 72 31 Explanation 3 under section 100 the Penal Code of Sri Lanka (1883 as amended)

32 See, e.g., Prosecutor v Nikola Šainovid et al (Trial Judgment, IT-05-87-T), 26 February 2009, ¶ 23 (case formerly called Milutinovid et al.)

33 Prosecutor v Kaing Guek Eav alias Duch (Trial Chamber, 001/18-07-2007/ECCC/TC), Extraordinary Chambers in the Courts of Cambodia, 26 July 2010, ¶ 527; Prosecutor v Kordic and Cerkez (Appeal Judgment, IT-95-14/2-A), ICTY, 17 December 2004, ¶ 28; Prosecutor v Kajelijeli (Trial Judgment, ICTR-98-44A-T), ICTY, 1 December 2003, ¶ 763; Prosecutor v Sesay et al. (Appeal Judgment, SCSL-04-15-A), SCSL, 26 October 2009, ¶ 164

34 Prosecutor v Kaing Guek Eav alias Duch, (Trial Judgment, 001/18-07-2007/ECCC/TC), Extraordinary Chambers in the Courts of Cambodia, 26 July 2010, ¶ 527; Prosecutor v Kordic and Cerkez (Appeal Judgment, IT-95-14/2-A) ICTY, 17 December 2004, ¶ 28; Prosecutor v Semanza (Appeal Judgment, ICTR-97-20-A), ICTR, 20 May 2005, ¶ 361; Prosecutor v Sesay et al. (Trial Judgment, SCSL-04-15-T), SCSL 2 March 2002, ¶ 273

35 Prosecutor v Kaing Guek Eav alias Duch (Trial Chamber, 001/18-07-2007/ECCC/TC), Extraordinary Chambers in the Courts of Cambodia, 26 July 2010, ¶ 527; Prosecutor v Gacumbitsi (Appeal Judgment, ICTR-2001-64-A), ICTR, 7 July 2006, ¶¶ 181-182; Prosecutor v Limaj et al. (Trial Judgment, IT-03-66-T), ICTY, 30 November 2005, ¶ 515; Prosecutor v Sesay et al. (Trial Judgment, SCSL-04-15-T), SCSL 2 March 2002, ¶ 273

36 Prosecutor v Kaing Guek Eav alias Duch (Trial Chamber, 001/18-07-2007/ECCC/TC), Extraordinary Chambers in the Courts of Cambodia, 26 July 2010, ¶ 528.

37See also Wijesuriya and another v The State 77 NLR 25.

38 See in this respect Fitting the Bill, supra 18, p. 40.

39 Prosecutor v Tihomir Blaškid, (Trial Judgement, IT-95-14-T), ICTY, 3 March 2000, ¶ 280.

40 Prosecutor v Ignace Bagilishema, (Appeal Judgement , ICTR-95-1A) , 3 July 2002, ¶ 30.

41 Explanation 1 under section 100 Penal Code of Sri Lanka (1883 as amended).

42 (1938) 3 C.L.J. xix, cited in Peiris, supra 22, p. 385.

43 Prosecutor v Delalic et al (Appeal Judgment, IT-96-21-A), ICTY, 20 February 2001, ¶ 256.

44 Prosecutor v Krnojelac (Trial Judgment, IT-97-25-T), ICTY, 15 March 2002, ¶ 197.

45 ED Declaration, supra 1, article 4.

46 Best Practices, supra 3, ¶ 40.

47 General Comment on the Continuous Nature of the Crime, supra 6, p. 1.

48 See ICPPED, supra 8, article 8(b). For domestic case law that examines the statute of limitations, see inter alia, Marco Antonio SánchezSamayoa et al (Tribunal Primero de Sentencia of Chiquimula Guatemala), 3 December 2009; Judgment No. C-26-2- (Tribunal for Criminal Act, Narco-activity and Crimes against the Environment of the region of Chimaltenango Guatemala), 7 September 2009; Constitutional Court of Guatemala, Judgment of 7 July 2009; Constitutional Section of the Supreme Tribunal of Justice of the Bolivarian Republic of Venezuela, Judgment of 10 August 2007.

49 ICPPED, supra 8, article 8.

50 See Fitting the Bill, supra 18, p. 24 for more explanation on this provision and its origin.

51 See Attorney General v Sepala Ekanayake (1988) 1 Sri LR 46

52 Under the Nuremberg Charter, various high ranking Nazi officials were tried and convicted of war crimes for their participation in enforced disappearances during World War II under the Night and Fog Decree. See Brian Finucane, ‘Enforced Disappearance as a Crime under International Law: A Neglected Origin in the Laws of War’ (2010) 35(171) The Yale Journal Of International Law available at https://campuspress.yale.edu/yjil/files/2016/09/35-1-finucaneenforced-disappearance-1tcwq1f.pdf. The Nuremberg Charter has been interpreted as reflecting the general principles of law. See Jonathan Thormundsson, ‘The Sources of International Criminal Law with Reference to Human Rights Principles in Domestic Criminal Law’ (Stockholm Institute for Scandinavian Law, 2009) p. 390. See also Fitting the Bill, supra 18, p. 24.

53 Fitting the Bill, supra 18, p. 24.

54 ED Declaration, supra 1, article 4

55 United Nations Human Rights Council, Resolution 30/1 ‘Promoting reconciliation, accountability and human rights in Sri Lanka’ (A/HRC/30/1, 1 October 2015) ¶ 7.

56 ICPPED, supra 8, article 11: “Any person against whom proceedings are brought in connection with an offence of enforced disappearance shall be guaranteed fair treatment at all stages of the proceedings. Any person tried for an offence of enforced disappearance shall benefit from a fair trial before a competent, independent and impartial court or tribunal established by law.”; Best Practices, supra 3, ¶¶ 57-58: “International law domestic legislation shall “stipulate that those responsible for the offence of enforced disappearance shall be tried only by the competent ordinary courts, in each State, and not by any other special tribunal, in particular military courts.”

57 It should be noted that the High Court in Colombo is the only Provincial High Court that has been established at the time of this Act, although there are plans to establish High Courts in other provinces in the future. The Bill not does leave open the option for any High Court, which is subsequently established, to be able to hear cases of enforced disappearance.

58 Final Report of the Commission of Inquiry into Involuntary Removal and Disappearances of Certain Persons (All Island) (2001), Sessional Paper No.1, p.16.

59 UNHRC, Report of the Working Group on Enforced or Involuntary Disappearances on its mission to Sri Lanka - Note by the Secretariat, (A/HRC/33/51/Add.2, 8 July 2016) ¶ 48 60 Ibid ¶¶ 47-48.

61 Ibid ¶ 83( b).

62 United Nations Human Rights Council, Resolution 30/1 ‘Promoting reconciliation, accountability and human rights in Sri Lanka’ (A/HRC/30/1, 1October 2015) ¶ 6.

63 See Mutual Assistance in Criminal Matters Act No 25 of 2002, Section 3 available at: http://www.oecd.org/site/adboecdanti-corruptioninitiative/39864230.pdf

64 See Extradition Law No 8 of 1977, article 7(1)(a):“A person shall not be extradited under this Law to any designated Commonwealth country or to any treaty State, or be committed to or kept in custody for the purposes of such extradition, if it appears to the Minister, to the court of committal, or to the Court of Appeal upon an application made to it for a mandate in the nature of a writ of habeas corpus that the offence of which that person was accused or was convicted is an offence of a political character”.

65 However, limits on extradition are established under Section 18, in situations where there is a possibility that an individual subject to extradition proceedings is at risk of being subjected to an enforced disappearance, as will be examined further below.

66 Working Group on Enforced or Involuntary Disappearances, ‘General Comment on the Right to the Truth in Relation to Enforced Disappearances’ (A/HRC/16/48, 26 January 2011), ¶ 4 [General Comment on the Right to Truth].

67 Ibid ¶ 1.

68 Constitution of the Democratic Socialist Republic of Sri Lanka (1978 as amended), article 14 (1) (b) & (C).

69 Ibid, articles 15 (3).

70 Ibid, articles 15 (4).

71 Ibid, articles 15 (7).

72 Prevention of Terrorism Act, No 48 of 1979, section 2(1): “Any person who -
(a) causes the death of any specified person, or kidnaps or abducts a specified person, or commits any other attack upon any such person, which act would, under the provisions of the Penal Code, be punishable with death or a term of imprisonment of not less than seven years; or (b) causes the death of any person who is a witness to any offence under this Act, or kidnaps or abducts or commits any other attack upon any such person, which act would, under the provisions of the Penal Code, be punishable with death or a term of imprisonment of not less than seven years; or
(c) commits criminal intimidation of any special person or a witness referred to in paragraph (b); or
(d) commits the offence of robbery of the property of the Government, any department, statutory board, public corporation, bank, co-operative union or co-operative society; or
(e) commits the offence of mischief to the property of the Government, any department, statutory board, public corporation, bank, cooperative union or co-operative society or to any other public property; or
(f) without lawful authority imports, manufactures or collects any firearms, offensive weapons, ammunition or explosives or any article or thing used, or intended to be used, in the manufacture of explosives; or
(g) possesses without lawful authority, within any security area, any firearms or any offensive weapon, ammunition or explosives or any article or thing used, or intended to be used, in the manufacture of explosives; or (h) by words either spoken or intended to be read or by signs or by visible representations or otherwise causes or intends to cause commission of acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups; or
(i) without lawful authority erases, mutilates, defaces or otherwise interferes with any words, inscriptions, or lettering appearing on any board or other fixture on, upon or adjacent to, any highway, street, road or any other public place; or
(j) harbours, conceals or in any other manner prevents, hinders or interferes with the apprehension of, a proclaimed person or any other person, knowing or having reason to believe that such person has committed an offence under this Act, shall be guilty of an offence under this Act.”

73 International Covenant on Civil and Political Rights (16 December 1966) United Nations, Treaty Series, vol. 999, p. 171, article 21.

74 General Commentary on the Right to Truth, supra 66, ¶ 5.

75 Practitioner’s Guide, supra 2, p. 123.

76 Ibid, p. 124.

77 See, e.g., Anzualdo Castro v Peru, Inter-American Court of Human Rights (IACrtHR), Series C No. 202 ( Judgment of 22 September 2009), ¶ 180; Contreras and others v El Salvador, Inter-American Court of Human Rights (IACrtHR), Series C No. 232, (Judgment of 31 August 2011), ¶ 135; Gomes Lund and others (Guerrilha do Araguaia) v Brazil, Inter-American Court of Human Rights (IACrtHR), Series C No. 219, (Judgment of 24 November 2010), ¶ 297; Almonacid Arellano and others v Chile, Inter-American Court of Human Rights (IACrtHR), Series C No. 154, (Judgment of 26 September 2006), ¶150; Chitay Nech and others v Guatemala, Inter-American Court of Human Rights (IACrtHR), Series C No. 212, (Judgment of 25 May 2010), ¶ 234; Ibsen Cárdenas and Ibsen Peña v Bolivia, Inter-American Court of Human Rights (IACrtHR), Series C No. 217, ( Judgment of 1 September 2010), ¶ 158; Radilla Pacheco v Mexico, Inter-American Court of Human Rights (IACrtHR), Series C No. 209, (Judgment of 23 November 2009), ¶ 179; Case of the Massacre of the Dos Erres v Guatemala, Inter-American Court of Human Rights (IACrtHR), Series C No. 211, (Judgment of 24 November 2009), ¶ 232; Inter-American Commission on Human Rights, Report No. 136/99, (Case No. 10.488, Ignacio Ellacuría S.J. and others (El Salvador)), (22 December 1999), ¶230; InterAmerican Commission on Human Rights, Report No. 28/92, (Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311 (Argentina)), 2 October 1992, ¶ 52

78 Osorio Rivera and Family v Peru, Inter-American Court of Human Rights (IACrtHR), Series C No. 274, (Judgment of 26 November 2013), ¶251. In the same regard, see: Rodríguez Vera et al. (The Disappeared from the Palace of Justice) v Colombia, Inter-American Court of Human Rights (IACrtHR), Series C No. 287, (Judgment of 14 November 2014) ¶480; GudielÁlvarez and others (DiarioMilitar) v Guatemala, Inter-American Court of Human Rights (IACrtHR), Series C No. 253, (Judgment of 20 November 2012), ¶ 200

79 M Pollard for the Association for the Prevention of Torture, ‘Incommunicado, ‘Unacknowledged, And Secret Detention Under International Law’ (2March 2006) p. 2 available at http://www.apt.ch/content/files_res/secret_detention_apt1-1.pdf 

80 See Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (A/RES/43/173, 9 December 1988), Principle 15. This principle specifies that incommunicado detention cannot last more than a matter of days. The prohibition of incommunicado detention and the requirement to register the information about the detainee serve the same purpose of ensuring that the person is not placed outside the protection of the law. A few days is also a reasonable delay for accomplishing a formality such as registration of detainees.

81 ED Bill, supra 9, section 20(3).

 

 

 

 

 

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