* Symposium Editor, Boston College Third World Law Journal (2002–2003). This paper is dedicated to Dr. Neelan Tiruchelvam, my late Fulbright advisor, who was assassinated in a suicide bombing in July 1999. His commitment to finding peace for Sri Lanka inspires me to follow a path of promoting human rights.
1 See Secretariat of the Independent Comm’n on International Humanitarian Issues, 1986, Disappeared! Technique of Terror: A Report for the Independent Commission on International Humanitarian Issues 31 [hereinafter Disappeared!].
2 See Marwaan Macan-Markar, The Haunting Ghosts of Chemmani, Tamil Times, July 15, 1999, at 13. Selvarajah now heads Jaffna’s Guardian Association for the Families of the Disappeared. Id.
3 See id.; see also Celia W. Dugger, Graves of the Missing Haunt Sri Lanka, N.Y. Times, Aug. 29, 2001, at A1.
4 Macan-Markar, supra note 2, at 13.
5 See University Teachers for Human Rights (Jaffna), Sri Lanka, Gaps in the Krishanthy Kumarasamy Case: Disappearances & Accountability, at iii, http:// www.uthr.org/SpecialReports/spreport12.htm (Apr. 28, 1999) [hereinafter Gaps in the Krishanthy Kumarasamy Case]; see also Asian Human Rights Comm’n, Sri Lanka: Slow Steps Towards Truth and Justice Exhumation of Mass Graves (1999), at http://www.ahrchk.net/hrsolid/mainfile.php/1999vol09no08/1217/(Aug. 8, 1999) [to be cited hereinafter as Slow Steps Towards Truth]. In the rape and murder case of Krishanthy Kumarasamy, six service personnel were sentenced to death in July 1998. See Slow Steps Towards Truth, supra. In wake of their sentences, one soldier divulged information on locations of supposed mass graves in Chemmani, four miles north of Jaffna, a Tamil-dominated city in northern Sri Lanka. See also Dugger, supra note 3, at A1. After protests by relatives due to delays in excavations, 15 bodies, bearing signs of blunt trauma, were exhumed, but no convictions have resulted against the killers. See id.
6 See Dugger, supra note 3, at A1.
7 See Amnesty Int’l, “Disappearances” and Political Killings: Human Rights Crisis of the 1990s, A Manual for Action 13 (1994).
8 See id.
9 See Jack Donnelly, International Human Rights 41 (1993). Disappearances, extrajudicial killings, and political killings usually accompany one another. See Amnesty Int’l, supra note 7 at 97. Extrajudicial killings differ from disappearances in that they refer to deliberate, unlawful killings performed under an order given by the government or with the government’s complicity or acquiescence. Amnesty Int’l, Getting Away with Murder: Political Killings and Disappearances in the 1990s, at 10 (1993). The combination of unlawfulness and governmental involvement symbolizes extrajudicial executions, which essentially become “murder committed or condoned by the state.” Amnesty Int’l, supra note 7, at 86. Political killings, on the other hand, are a wider phenomenon of extrajudicial killings and deliberate and arbitrary executions by armed political groups, usually in opposition to the government. See Amnesty Int’l, supra, at 10.
10 See Donnelly, supra note 9, at 41.
11 See Amnesty Int’l, supra note 7, at 84–85.
12 See Amnesty Int’l, supra note 9, at 13; see also Disappeared!, supra note 1, at 20; Richard Goldstone, Exposing Human Rights Abuses—A Help or Hindrance to Reconciliation, 27 Hastings Const. L.Q. 607, 611 (1995).
13 Goldstone, supra note 12, at 611.
14 See Amnesty Int’l, supra note 9, at 13.
15 See Disappeared!, supra note 1, at 20.
16 See id. at 21.
17 See Nunca Más: The Report of the Argentine National Comm’n on the Disappeared, at xiii (1986).
18 See Disappeared!, supra note 1, at 21.
19 See Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Cal. L. Rev. 449, 452 (1990).
20 See id.
21 See id.
22 See id.
23 See Amnesty Int’l, supra note 7, at 87–90, 106.
24 See id. Each factor demonstrates the difficulty in combating not only disappearances, but also extrajudicial killings and political killings. See id.
25 See id. at 87.
26 See id. at 88.
27 Amnesty Int’l, supra note 7, at 84.
28 See id. at 88.
29 See id.
30 See id.
31 See id. at 88–89.
32 See Amnesty Int’l, supra note 7, at 90.
33 See id. at 89.
34 See id. at 97.
35 See Universal Declaration of Human Rights, G.A. Res. 217A, U.N. Doc. A/810, at 71 (1948) [hereinafter Universal Declaration]; see also Amnesty Int’l, supra note 7, at 105–06.
36 See International Covenant on Civil and Political Rights, G.A. Res. 2200A, U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966) [hereinafter ICCPR]. See generally Universal Declaration, supra note 35. Both Article 5 of the Universal Declaration and Article 7 of the ICCPR establish that human beings have the innate right not be tortured or subjected to cruel, inhuman, or degrading treatment or punishment. See ICCPR, supra. See generally Universal Declaration, supra note 35. The ICCPR, by having the formal force of a treaty, commits those states that become parties to it to ensuring that the rights enumerated are protected and respected. See ICCPR, supra. See generally Universal Declaration, supra note 35. Amnesty International argues that the Universal Declaration, though not a treaty, has become so widely recognized that its provisions should be obligatory to all states. See Amnesty Int’l, supra note 7, at 97–100.
37 See Amnesty Int’l, supra note 7, at 97–100. The Universal Declaration of Human Rights, though providing basic human rights standards, also envisions action. See id. The Preamble asks each individual and organ of society “to secure their universal and effective recognition and observance” “by teaching and education to promote respect for these rights” and “by progressive measures, national and international.” Universal Declaration, supra note 35. The ICCPR, under Article 2, asks each state party “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized.” ICCPR, supra note 36. It also encourages the adoption of “‘legislative or other measures’” to give effect to such rights. Id. Though both the Universal Declaration and ICCPR ensure action based on their provisions, weak enforcement mechanisms negate their effectiveness. See Amnesty Int’l, supra note 7, at 106.
38 Disappeared!, supra note 1, at 49.
39 See Universal Declaration, supra note 35, at art. 5, 9; Amnesty Int’l, supra note 7, at 99. Article 6 of the ICCPR states that “No one shall be arbitrarily deprived of his life,” distinguishing extrajudicial executions from deaths resulting during armed conflict, which are legitimate under international humanitarian law. ICCPR, supra note 36. It also distinguishes from the use of the death penalty “where internationally established procedural safeguards and restrictions are observed.” Id. Disappearances infringe on the right to life, as persons “may be arbitrarily executed or may die in detention through cruel treatment or . . . lack of care.” Disappeared!, supra note 1, at 49.
40 See Disappeared!, supra note 1, at 49.
41 See id.
42 See Office of the High Comm’r for Hum. Rts., Fact Sheet No.6 (Rev.2), Enforced or Involuntary Disappearances, at http://www.unhchr.ch/ html /menu6 /2 /fs6.htm (Jan. 5, 2001) [hereinafter Office High Comm’r].
43 See International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A, U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316 (1966).
44 See Convention on the Rights of the Child, G.A. Res. 25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989).
45 See Amnesty Int’l, supra note 7, at 100, 120. Article 3 of the Code states: “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” Id. The Code outlines that force should only be used when “strictly necessary” and should be proportional to the objectives. Id.
46 See id. at 98–99, 120. The UN Committee on Crime Prevention and Control drafted these principles, and the General Assembly adopted them in 1989. See id. Article 1 states, “Governments shall prohibit by law all extra-legal, arbitrary and summary executions.” See Amnesty Int’l, supra note 7, at 98–99, 120.
47 See generally Office High Comm’r, supra note 42. The UN Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted the Declaration after consideration. Declaration on the Protection of All Persons from Enforced Disappearance, G.A. Res. 133, U.N. GAOR, 47th Sess., Supp. No. 49, at 207, U.N. Doc. A/47/49 (1992) [hereinafter Declaration on Enforced Disappearance]. See generally id. Article 2 states, “No state shall practise, permit or tolerate enforced disappearances.” Declaration on Enforced Disappearance, supra; Amnesty Int’l, supra note 7, at 98–99.
48 See Disappeared!, supra note 1, at 50.
49 Declaration on Enforced Disappearance, supra note 47, pmbl.
50 Amnesty Int’l, supra note 7, at 107.
51 See id. at 104–05. These instruments include the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the American Convention on Human Rights (1969), and the African Charter on Human and Peoples’ Rights (1981). See id. International humanitarian law provides the rules of appropriate warfare. See id. at 101–04. International humanitarian law primarily includes the Geneva Conventions of 1949 and the Additional Protocols on International and Non-International Conflicts, adopted in 1977. See generally Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1225 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1225 U.N.T.S. 609.
52 See Amnesty Int’l, supra note 7, at 98, 105.
53 See id. at 105.
54 See id.
55 See id. at 107. In Article 56, all UN member states “pledge themselves to take joint and separate action” with the UN to achieve “universal respect for, and observance of human rights.” U.N. Charter art. 56.
56 William G. O’Neill, Gaining Compliance Without Force: Human Rights Field Operations, in Civilians in War 93 (Simon Chesterman ed., 2001).
57 See id. at 95.
58 See id.
59 Id. at 96. Thematic rapporteurs have mandates that cover “extrajudicial, summary, or arbitrary executions; torture; violence against women; religious freedom; and the independence of the judiciary, among other topics.” Id.
60 See O’Neill, supra note 56, at 96.
61 See id. Working groups work on “such issues as contemporary forms of slavery, ‘disappearances,’ arbitrary detention, and the right to development.” Id. After gathering and receiving information, they confront states with allegations and issue their findings in annual reports. Id.
62 See id.
63 See O’Neill, supra note 56, at 96.
64 See id.
65 See id.
66 See id. at 96–97.
67 See id. at 97. For example, the ICCPR’s treaty body, or the Human Rights Committee, is composed of 18 experts, who review reports submitted by states that have ratified the treaty. See O’Neill, supra note 56, at 97. At several annual meetings, state representatives answer questions on the human rights situation in their countries and issues within the report, and the Committee publishes its findings. See id.
68 See id.
69 See id. The periodic reports from such bodies are also often produced late and are usually “vague or downright misleading.” Id.
70 See O’Neill, supra note 56, at 97.
71 See id.
72 See id.
73 Office High Comm’r, supra note 42; see also O’Neill, supra note 56, at 95–98; Amnesty Int’l, Implementation of the Recommendations of the UN Working Group on Enforced or Involuntary Disappearances Following Their Visits to Sri Lanka in 1991 and 1992, at http://web.amnesty.org /ai.nsf/Index/ASA . . . 1998?OpenDocu-ment&of=COUNTRIES\SRI+LANKA (Feb. 1, 1998). The UN Commission on Human Rights mandates UN thematic experts or mechanisms. See O’Neill, supra note 56, at 95.
74 Amnesty Int’l, supra note 7, at 185–86. The Working Group on Disappearances has developed a number of innovative strategies to achieve its mission. See id. The group receives and examines reports on individual cases submitted to it; it has devised an “urgent action procedure” to submit reports to governments between sessions in order to save lives; it sends responses from governments to the original complainants; and has implemented a “prompt intervention” procedure to deal with incidents where intimidation and reprisal of individuals or organizations are involved. Members of the group have visited countries and provided recommendations. Id. at 185.
75 See generally Office High Comm’r, Fact Sheet Disappearances, supra note 42.
76 Report of the Working Group on Enforced or Involuntary Disappearances: Civil and Political Rights, Including the Questions of Disappearances and Summary Executions, U.N. ESCOR, Comm’n on Hum. Rts., 57th Sess., Agenda Item 11(b), U.N. Doc. E/CN.4/2001/68 (2000), at 3. [hereinafter Working Group 2000]. “The total number of cases being kept under active consideration, as they have not yet been clarified . . . stands at 45,998.” Id.
77 See Amnesty Int’l, supra note 7, at 196.
78 See Office High Comm’r, supra note 42.
79 See Amnesty Int’l, supra note 7, at 187–88.
80 See id. at 188.
81 See id. at 108. This perspective is specifically embraced in Article 2 of the ICCPR. See ICCPR, supra note 36. Judgments and decisions delivered by the Inter-American Court of Human Rights, a court established under the terms of the ICCPR, reinforce this duty. See Amnesty Int’l, supra note 7, at 108. In the Inter-American Court’s Velásquez Rodriguez judgment, the Court said that the “[s]tate has a legal duty to take responsible steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed.” Id.
82 See Amnesty Int’l, supra note 7, at 108–09; Interview with M.C.M. Iqbal, Secretary, Presidential Commission on Inquiry into Involuntary Removals and Disappearances of Persons in Sri Lanka, in Colombo, Sri Lanka (Mar. 2000).
83 See K.M. de Silva, Reaping the Whirlwind: Ethnic Conflict, Ethnic Politics in Sri Lanka 7 (1998). De Silva divides the population of the country into three ethnic groups¾Sinhalese, Tamil, and Muslim¾and four major religions¾Buddhism, Hinduism, Islam, and Christianity. See id. The Sinhalese constitute a majority in Sri Lanka, the bulk of whom are Buddhists. See id. at 8. Some argue, however, that a majority within a minority complex emerges regionally when Sinhalese view their numbers dwarfed in relation to Tamil identification in southern India, particularly to the state of Tamilnadu. See id. Cultural distinctiveness develops between the two groups through religion (predominately Theravada Buddhism and Hinduism) and language (Sinhala and Tamil). See id. Two distinct groups exist within the Tamil minority population, the Sri Lankan Tamils and the Indian Tamils, the latter brought to work on tea plantations by colonial British planters in the nineteenth and early twentieth centuries. See de Silva, supra, at 8–9. Sri Lankan Tamils are concentrated in the northern and eastern parts of the country, while Indian Tamils live predominately on the plantations in central Sri Lanka (the hill country). See id. at 9. The plantation Tamils are generally considered “low” caste by the Sri Lankan Tamil elite, “the Indian Tamils being, in the main, plantation workers. While there is no convergence of political attitudes and objectives between them [Indian Tamils] and the Sri Lankan Tamils, especially the most activist armed groups, there is. . . considerable sympathy from the hill country or Indian Tamils for the latter in the. . . struggle with the Sri Lankan state.” Id. The third major ethnic group, the Muslims, concentrate in the Eastern Province. While mostly Tamil-speaking, the Muslims in Sri Lanka have maintained political separation from Tamil parties and have strongly opposed the establishment of a separate Tamil state. See id. at 11.
84 See Lisa M. Kois et al., Sri Lanka’s Civil War & Prospects for Post-Conflict Resolution, WPF Reports, No. 18, 5–7 (1998). In the 1970s and late 1980s to early 1990s, the Janatha Vimukthi Peramuna (JVP), a Sinhalese leftist nationalist party, also orchestrated southern insurrections. See id.
85 See id. at 5; see also Purnaka L. de Silva, Hatred and Revenge Killings: Construction of Political Violence in Sri Lanka, in Matters of Violence: Reflections on Social and Political Violence in Sri Lanka 15, 16 (Jayadeva Uyangoda & Janaka Biyanwila eds., 1997); Robert I. Rotberg, Sri Lanka’s Civil War: From Mayhem Toward Diplomatic Resolution, in Creating Peace in Sri Lanka 1, 4 (Robert I. Rotberg ed., 1999); Chris Smith, South Asia’s Enduring War, in Creating Peace in Sri Lanka, supra, at 17, 18. Many experts claim that the official war began in 1983, when the deaths of 13 government soldiers in Jaffna sparked anti-Tamil riots throughout the country, leaving 600 people dead. See de Silva, supra note 83, at 7; see also Smith, supra, at 7. Other scholars argue that the political instability came in three stages, from 1955 to 1961, to the violence in the 1970s, which culminated in riots in 1977, until the violent outbreak in 1983. See de Silva, supra note 83, at 7. Vellupillai Prabhakaran formed the LTTE in 1973. See Smith, supra, at 7. The Marxist extremist group spearheaded Tamil separatism through terror and violence to achieve an independent homeland called Eelam. See id.
86 See Law & Soc’y Trust, Sri Lanka: State of Human Rights 1999, at 21–23 (1999); see also BBC News Online, Peace Deal in Sri Lanka, at http: //news.bbc.co.uk /hi /english/world/south_asia/newsid_1833000/1833230.stm (Feb. 21, 2002). Prime Minister Ranil Wickramasinghe and the Liberation Tamil Tigers of Tamil Eelam (LTTE), the primary Tamil extremist group, signed a ceasefire brokered by Norwegian delegates on February 21, 2002, providing hope for an end to the conflict. See BBC News Online, supra.
87 See de Silva, supra note 83, at 12.
88 See Rajan Hoole, Sri Lanka, The Arrogance of Power: Myths, Decadence and Murder 7 (2001). The Citizenship Acts of 1948/1949 effectively disenfranchised Indian Tamils by labeling them non-citizens. See id. The “Sinhala Only” Act of 1956, otherwise known as the Official Language Act No. 33 of 1956, legitimized the call of the Sinhalese nationalists to make Sinhala the official state language, which spurred riots in 1958. See id. at 51, 179; see also de Silva, supra note 83, at 51. In reality, Sri Lanka remained a bilingual nation, particularly in the arena of education, where students had a right to be educated in their mother tongue. See de Silva, supra note 83, at 59. The Constitution of 1978 maintained Sinhala as the official language but recognized Tamil as a national language. Sri Lanka Const. art. 18–19. By 1972, the Constitution elevated Buddhism, practiced by the Sinhalese majority to a religion officially protected by the state: “The Republic of Sri Lanka shall give Buddhism the foremost place and accordingly it shall be the duty of the state to protect and foster Buddhism while assuring to all religions the rights guaranteed by section 18(1)(d).” Id. at ch. II.
89 See Hoole, supra note 88, at 7; see also de Silva, supra note 83, at 15.
90 See de Silva, supra note 83, at 139. The Tamil United Liberation Front (TULF), which formed in 1976, began to push for a separate state for Tamil-speaking areas in the north and east. See id. at 139. “Separatist agitation went through several stages and phases, beginning with peaceful political pressure, moving on to civil disobedience, and then to violence, and that violence itself graduated from sporadic acts to more systematic attacks . . . .” Id. at 151. The Vaddukodai resolution of 1976 demonstrates the TULF call for a separate state: “Whereas throughout the centuries . . . the Sinhalese and Tamil nations have divided between them the possession of Ceylon (Sri Lanka) . . . Tamil Eelam shall consist of the Northern and Eastern Provinces.” Id. at 155. In 1977 communal riots elevated to severe evels and spread to parts of the country not witnessed before in Sri Lanka. See id. at 164.
91 See de Silva, supra note 83, at 180.
92 Darini Rajasingham-Senanayake, The Dangers of Devolution: The Hidden Economies of Armed Conflict, in Creating Peace in Sri Lanka, supra note 85, at 57, 57–58.
93 See Amnesty Int’l, supra note 9, at 15.
94 See Amnesty Int’l, supra note 7, at 28. President Ranasinghe Premadasa lifted the state of emergency in 1989 following his election as President. See id.
95 See Kois et al., supra note 84, at 8; see also Amnesty Int’l, supra note 7, at 26.
96 See Amnesty Int’l, Sri Lanka Government’s Response to Widespread “Disappearances” in Jaffna, at http://web.amnesty.org/ai.nsf/Index/ASA37024199 7?OpenDocument&of=THEMES\DISAPPEARANCES (Nov. 27, 1997); see also Amnesty Int’l, supra note 7, at 26; Amnesty Int’l, supra note 9, at 15. From 1984 to mid-1987, Amnesty International recorded 680 disappearances. See Amnesty Int’l, supra note 9, at 15. In 1990, after Indian troops left and armed conflict resumed between the Government and LTTE, disappearances climbed into the thousands. See id.
97 See Priyadharshini Dias, Involuntary Disappearances and Other Violations of Human Rights—Sri Lankan Experience, Lawyers’ and Activists’ Conference on Human Rights, at 2 (unpublished manuscript of paper delivered at conference on Jan. 11–13, 2002, on file with author). The Organisation of the Parents and Family Members of the Disappeared (OPFMD) estimates that between 40,000 and 60,000 people disappeared between 1983–1990. See id. Authorities categorize the large numbers of disappearances into three periods: 1) during Eelam War I, when Tamils predominantly disappeared (1980–1987); 2) during the JVP insurrection, when Sinhalese predominantly disappeared (1987–1989); and 3) during Eelam Wars II and III, when Tamils predominantly disappeared (1990-present day). See J.S. Tissainayagam, Human Rights and the NGOs, The Sunday Leader (Colombo), Apr. 16, 2000, available at http:// www.lanka.net/sundayleader/2000/Apr/ 16/issues.html.
98 Amnesty Int’l, supra note 7, at 25.
99 See id. Under emergency rule, Emergency (Miscellaneous Provisions and Power) Regulations, which must be approved and renewed monthly by Parliament, come into force. See id. at 28. The Sri Lankan Public Security Ordinance (PSO) No. 25 of 1947, as amended, allows the president to declare a state of emergency “in the interest of public security and the preservation of public order” and to maintain supplies and services “essential to the life of the community.” Deepika Udagama, Taming of the Beast: Judicial Responses to State Violence in Sri Lanka, 11 Harv. Hum. Rts. J. 269, 277-78 (1998); see also Amnesty Int’l, supra note 7, at 28. Section 5 of the PSO gives the President power to promulgate emergency regulations which may override existing law but cannot supersede the Constitution. See Udagama, supra, at 278.
100 Sri Lanka Const. ch. III, art. 9(1).
101 See id. at ch. III, art. 10. Article 10(1) and (2) state:
(1) A person shall not be arrested, imprisoned or otherwise physically restrained except in accordance with procedure prescribed by law. (2) Save as otherwise provided by law, a person shall not be arrested except under a warrant issued by a judicial officer causing such person to be apprehended and brought before a competent court in accordance with procedure prescribed by law.
Id.
102 Ministry of Foreign Affairs, Periodic Report Under the International Covenant on Civil and Political Rights 7 (1999) (unpublished manuscript, on file with author); see also For the Record 2001: The UN Human Rights System 3, Sri Lanka, Human Rights Internet (HRI), at http://www.hri.ca/fortherecord2001/vol3/srilankarr.htm (last visited Mar. 23, 2002) [hereinafter For the Record 2001]. Sri Lanka’s fourth and fifth periodic reports were due in September 1996 and 2001, respectively. For the Record 2001, supra. The Supreme Court has exclusive jurisdiction over cases involving “infringement or the imminent infringement by executive or administrative action of any fundamental right or language right,” as outlined in Article 126. Sri Lanka Const. art. 126.
103 Sri Lanka Const. art. 126. The Ombudsman, established in 1981, has the duty to investigate and report on “complaints or allegations of the infringement of fundamental rights and other injustices by public officers of public corporations, local authorities and other like institutions.” Ministry of Foreign Affairs, supra note 102, at 8. The office was designed to provide “expeditious and inexpensive means” for the public to settle their grievances. Id.
104 Sri Lanka Const. art. 141. Although the Constitution “does not provide for the right to life, illegal abductions can be challenged in terms of Article 13 . . . within the limitations provided in Article 126.” See Dias, supra note 97, at 6. Though the Government claims that the writ acts as a deterrent even under a state of emergency, the limited number of prosecutions involving perpetrators of disappearances calls into question such a statement. See Ministry of Foreign Affairs, supra note 102, at 17.
105 See Udagama, supra note 99, at 275. The government passed the PTA initially for a period of only three years. See Amnesty Int’l, supra note 7, at 28; see also Udagama, supra note 99, at 276.
106 See Udagama, supra note 99, at 275.
107 See id.; see also Prevention of Terrorism (Temporary Provisions) Act, No. 48 (1979) (amended 1982) (Sri Lanka), available at http://www.peacebrigades.org/lanka/slppta. html [hereinafter PTA]. Sections six and nine of the Act largely expand the state’s powers of arrest and detention. See PTA, supra. Section nine of the PTA empowers ministers “to order the detention of a person for up to eighteen months without judicial supervision, where the Minister ‘has reason to believe or suspect that any person is connected with or concerned in any unlawful activity.’” PTA, supra; Udagama, supra note 99, at 276. Section six allows “police to arrest, search a person or premises and to seize any document or item without warrant, and allows the police to detain a person for three days without judicial supervision if there is a reasonable suspicion that the person is connected with any unlawful activity.” See PTA, supra; Udagama, supra note 99, at 276.
108 Int’l Comm’n of Jurists, States of Emergency: Their Impact on Human Rights 413–14 (1983).
109 See Neelan Tiruchelvam, Emergency Debate: September 6, 1994, in Transcending the Bitter Legacy: Selected Parliamentary Speeches 1 (Lisa Kois ed., 2000); see also Bradman Weerakoon & Shelton Wanasinghe, Reflections on Governance 5 (1994).
110 See Amnesty Int’l, Sri Lanka: New Emergency Regulations¾Erosion of Human Rights Protection 1, at http://www.web.amnesty.org/aidoc/aidoc_pdf.nsf/index/ ASA370192000ENGLISH/$File/ASA3701900.pdf (July 1, 2000); BBC News Online, Sri Lanka Invokes Terror Laws, at http://news.bbc.co.uk/hi/english/world/south_asia/newsid_ 1424000/1424145.stm (July 5, 2001).
111 See Amnesty Int’l, supra note 110, at 1.
112 See id.
113 See id.
114 Hum. Rts. Watch, World Report 2002: Events of 2001, November 2000–November 2001, at 252 (2002).
115 See Amnesty Int’l, supra note 7, at 30.
116 See id. at 30–31.
117 See U.S. Dept. of State, Country Reports on Human Rights Practices For 1999, Sri Lanka 2436, available at http://www.state.gov/www/global/human_rights/1999 _hrp_report/srilanka.html (Feb. 25, 2000) [hereinafter U.S. Dept. of State, 1999].
118 See Amnesty Int’l, supra note 7, at 31.
119 See U.S. Dept. of State, 1999, supra note 117, at 2436.
120 See U.S. Dept. of State, Country Reports on Human Rights Practices for 2001: Sri Lanka 2535–36, 2538, 2540–41 available at http://www.state.gov/g/drl/rls/ hrrpt/2001/sa/8241.htm (Mar. 4, 2002) [hereinafter U.S. Dept. of State, 2001]; see also Kishali Pinto Jayawardene, Torture Amidst the New Year Crackers, The Sunday Times (Colombo), Apr. 16, 2000, at 10 (describing the letter from the UN Special Rapporteur on Torture to the Sri Lankan President dated Nov. 15, 1999).
121 See Amnesty Int’l, Sri Lanka: Torture in Custody 8–9, http://web.amnesty.org/aidoc/aidoc_pdf.nsf/index/ASA370101999ENGLISH/$File/ASA3701099.pdf (June 1, 1999); see also U.S. Dept. of State, 2001, supra note 120, at 2541; Frederica Jansz, UNHCR Says All Unofficial Places of Detention Must Be Dissolved, The Lanka Academic, at http://www.lacnet.org/the_academic/archive/2000/2000_04_27 (Apr. 28, 2000). At its 56th session, the United Nations Human Rights Commission (UNHRC) called for all unofficial places of detention maintained by paramilitary organizations, such as the People’s Liberation Organization of Tamil Eelam (PLOTE) and the Tamil Eelam Liberation Organization (TELO), to be dissolved. See generally Jansz, supra. The UNHRC stated that the Sri Lankan government has not implemented any of its nine recom-mendations to prevent enforced disappearances or to bring the country up to internationally accepted standards of human rights. See generally id.
122 See Report of the Working Group on Enforced or Involuntary Disappearances: Civil and Political Rights, Including Questions of Disappearances and Summary Executions: Report on the Visit to Sri Lanka by a Member of the Working Group on Enforced or Involuntary Disappearances, U.N. ESCOR, Comm’n on Human Rights, 56th Sess., Agenda Item 11(b), U.N. Doc. E /CN.4 /Add.1/2000/64 (1999), at 10, ¶44 [hereinafter Working Group 1999]; see also U.S. Dept. of State, 2001, supra note 120, at 2542.
123 See U.S. Dept. of State, 2001, supra note 120, at 2538.
124 Id. at 2540. Tighter restrictions were “implemented following a May 1999 shootout between PLOTE and TELO supporters near a popular shopping center in downtown Colombo. Despite the restrictions on weapons, the TELO and PLOTE had a shootout in Vavuniya in August.” Id.
125 See BBC News Online, supra note 86. The peace talks in late October through early November 2002 established three committees to examine rehabilitation needs in war-hit areas, to push military de-escalation, and to look at political questions at the heart of the 19 year civil war. BBC News Online, Rapid Progress to Sri Lanka Peace, at http://news.bbc. co.uk/2/hi/south_asia/2393271.stm (Nov. 3, 2002).
126 See generally BBC News Online, supra note 86; BBC News Online, supra note 125.
127 See Teresita C. Schaffer, Peacemaking in Sri Lanka: The Kumaratunga Initiative, in Creating Peace in Sri Lanka, supra note 85, at 131–32. Early initiatives in 1994–1995 to form a ceasefire ended on April 19, 1995, when the LTTE destroyed two Sri Lankan naval craft and, within five days, shot down two air force planes. See id. at 132.
128 See U.S. Dept. of State, 2001, supra note 120, at 2539.
129 See generally J.S. Tissainayagam, Human Rights: No Changes, Only Window Dressing, The Sunday Leader (Colombo), Mar. 5, 2000, available at http://www.lanka.net /sundayleader /2000 /Mar/05/issues.html.
130 See Naomi Roht-Arriaza, Introduction, in Impunity and Human Rights in International Law and Practice 3 (Naomi Roht-Arriaza ed., 1995).
131 See id. at 4. A modified form of a truth commission can also be established, in which “the most serious offenders [of human rights abuses] remain subject to loss of office or even prosecution.” Goldstone, supra note 12, at 609.
132 Roht-Arriaza, supra note 130, at 4.
133 See id. at 4.
134 See Amnesty Int’l, supra note 7, at 32; see also Tissainayagam, supra note 129.
135 See Amnesty Int’l, supra note 7, at 13; see also U.S. Dept. of State, 1999, supra note 117, at 2440.
136 See Presidential Comm’n of Inquiry into Involuntary Removal of Persons, Final Report 1 (Nov. 15, 1995) [hereinafter Presidential Comm’n].
137 See id; see also de Silva, supra note 83, at 327.
138 See Dias, supra note 97, at 3.
139 See Working Group 1999, supra note 122, at 5, ¶17.
140 See Amnesty Int’l, Sri Lanka: Justice Will Not Be Done Unless Commissions of Inquiry Into Past Violations Are Made Public, at http://web.amnesty.org/ai.nsf/ print/ASA370221997?OpenDocument (Sept. 3, 1997).
141 See U.S. Dept. of State, 2001, supra note 120, at 2539. See generally Comm’n of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces, Final Report (Sept. 1997) [hereinafter Comm’n of Inquiry].
142 See generally Amnesty Int’l, supra note 140.
143 Interview with M.C.M. Iqbal, supra note 82; see also Working Group 1999, supra note 122, at 5, ¶16. The reports had limited accessibility and were printed primarily in English, with only recent Sinhala translations and no Tamil editions. See id.; see also interview with M.C.M. Iqbal, supra note 82.
144 Working Group 1999, supra note 122, at 5, ¶15; Dias, supra note 97, at 4; see Asian Hum. Rts. Comm’n Urgent Appeal, Sri Lanka: 16,742 Disappearances Established! What Next?, at http://www.ahrchk.net/ua/mainfile.php/1997/4 (Sept. 17, 1997) [hereinafter Asian Hum. Rts. Comm’n].
145 Interview with T. Suntheralingham, Secretary, Human Rights Commission & Chairman, Presidential Commission on Disappearances for the North and East, Sri Lanka, in Colombo, Sri Lanka (May 2000); see also Interview with M.C.M. Iqbal, supra note 82. Set up in May 1998, a fourth commission investigated another 10,000 cases islandwide that the previous commissions were unable to investigate before their terms ended in May 1997. See U.S. Dept. of State, 2001, supra note 120, at 2539; see also Working Group 1999, supra note 122 at 5, ¶15. The commission again had a limited mandate and could not investigate cases of disappearance, which occurred after 1994, subsequent to the start of President Kumaratunga’s period in office. U.S. Dept. of State, Country Reports on Human Rights Practices For 2000: Sri Lanka, 2331 available at http://www.state.gov/g/drl/ rls/hrrpt/2000/sa/704pf.htm (Feb. 23, 2001) [hereinafter U.S. Dept. of State, 2000]. Though disappearances occurring in previously controlled LTTE areas had not been adequately reported, the last commission had no authority to review such cases. Shamindra Ferdinando, Presidential Commission to Submit Interim Report on Jaffna Disappearances, The Island (Colombo), Mar. 31, 1999, at 2. After presentation to the President in August 2000, the fourth commission’s report still is not publicly available. See U.S. Dept. of State, 2001, supra note 120, at 2539.
146 U.S. Dept. of State, 2001, supra note 120, at 2539. Under its mandate, the commission also had the authority to send cases to the Attorney General for possible prosecution. Id.; Interview with M.C.M. Iqbal, supra note 82; see also Dias, supra note 97, at 3.
147 See Amnesty Int’l, supra note 140.
148 See Dias, supra note 97, at 4.
149 Interview with Yasantha Kodagoda, Senior State Counsel, Missing Persons Unit, Attorney General’s Office, in Colombo, Sri Lanka (Mar. 2000).
150 Asian Hum. Rts. Comm’n, supra note 144.
151 See Ministry of Defence, Sri Lanka, Report of the Board of Investigation into Disappearances in Jaffna Peninsula 1 (Mar. 9, 1998), (unpublished manuscript, on file with author); see also Amnesty Int’l, Sri Lanka: Probe into “Disappearances” Must Inspire Confidence, at http://web.amnesty.org/ai.nsf/print/ASA370301999?OpenDocument (Dec. 7, 1999).
152 See generally Amnesty Int’l, supra note 151.
153 See Dias, supra note 97, at 4; see also Amnesty Int’l, supra note 140; Working Group 1999, supra note 122, at 6, ¶19.
154 See generally Amnesty Int’l, supra note 140.
155 See Ministry of Defence, supra note 151, at 5; see also Working Group 1999, supra note 122, at 6, ¶19.
156 See Dias, supra note 97, at 6–7.
157 Tamilnet, MGPA Allege MoD Cover-Up (Dec. 2, 1999) at http://www.tamilnet.com/ reports99/12/0210.html. The MPGA is a non-governmental association in Jaffna. See id. Some did not take the findings of the BOI seriously since the complaints waged were against the very officials who were investigating them. Interview with M.C.M. Iqbal, supra note 82.
158 See Tamilnet, supra note 157.
159 See generally Amnesty Int’l, supra note 151.
160 See id.
161 Interview with M.C.M. Iqbal, supra note 82.
162 See generally Amnesty Int’l, supra note 151.
163 See id.
164 See Amnesty Int’l, supra note 7, at 108–09.
165 See Hum. Rts. Comm’n of Sri Lanka, 1997/98 Annual Report 1 (Mar. 30, 1998). The HRTF served as “an independent body to monitor and observe fundamental rights of persons detained in custody under emergency regulations.” See Ministry of Foreign Affairs, supra note 102. The ineffective work of the Task Force led it to be subsumed under the Human Rights Commission on June 30, 1997. See id.
166 See generally Ministry of Foreign Affairs, supra note 102. Emergency Regulation 18(8) provides for the issuance of receipts to the next-of-kin of arrestees and for the surveillance of defaulters. See id.
167 Hum. Rts. Comm’n of Sri Lanka, supra note 165, at 2; see also Law & Soc’y Trust, supra note 86, at 36.
168 Human Rights Commission Act, No. 21 (1996) (Sri Lanka) [hereinafter HRC Act]. The HRC has offices in Ampara, Anuradhapura, Baddulla, Batticaloa, Colombo (Head Office), Jaffna, Kalmunai, Kandy, Matara, Trincomalee, and Vavuniya. See Hum. Rts. Comm’n of Sri Lanka, supra note 165, at 4. Section 14 of the Act states that:
The Commission may, on its own motion or on a complaint made to it by an aggrieved person or group of persons or a person acting on behalf of an aggrieved person or group of persons, investigate an allegation of the infringement or imminent infringement of a fundamental right of such person or groups of persons.
HRC Act, supra, § 14. Section 15(2) also provides for resolution through mediation or conciliation where appropriate. HRC Act, supra, § 15(2).
169 Hum. Rts. Comm’n of Sri Lanka, supra note 165, at 2.
170 See id.
171 See id.
172 See generally Ministry of Foreign Affairs, supra note 102.
173 See generally id. In an effort to try and lessen the burden placed on the Supreme Court, the HRC was given no time limits for the filing of complaints. See generally id.
174 Hum. Rts. Comm’n of Sri Lanka, supra note 165, at 2.
175 HRC Act, supra note 168, § 28;see also Directions Issued by Her Excellency the President, Commander-in-Chief of the Armed Forces and Minister of Defence (July 31, 1997) [hereinafter Directions] (on file with author).
176 Hum. Rts. Comm’n of Sri Lanka, supra note 165, at 3.
177 Directions, supra note 175. The Presidential Directions outline the procedures for lawful arrests:
(3) At or about the time of arrest or if it is not possible in the circumstances, immediately thereafter as circumstances permit: (i) the person making the arrest or detention shall identify himself to the person arrested or any relative or friend of such person upon inquiry being made, by name and rank; (ii) every person arrested or detained shall be informed of the reason for the arrest; (iii) the person making the arrest or detention shall issue, to . . . any . . . close relation . . . a document in such form as specified by the Secretary to the Ministry of the Minister in charge of the subject of Defence, acknowledging the fact of arrest. The name and rank of the arresting officer, the time and date of arrest and the place at which the person will be detained shall also be specified. It shall be the duty of the holder of such document to return the same to, or produce the same before, the appropriate authority when the person so arrest or detained is released from custody.
Id.
178 See id. Also, “[a] person of their choice should be allowed to accompany such child or woman to the place of questioning.” Id.
179 Id.
180 See Gaps in the Krishanthy Kumarasamy Case, supra note 5, at ii, 3.
181 See U.S. Dept. of State, 2001, supra note 120, at 2537.
182 Hum. Rts. Comm’n of Sri Lanka, supra note 165, at 2.
183 Law & Soc’y Trust, supra note 86, at 32–33, 36. Many observers particularly and severely criticized the HRC for its inaction with regard to the revelations of the Chemmani graves. See id.
184 See Working Group 1999, supra note 122, at 6, ¶21.
185 See id.
186 See Law & Soc’y Trust, supra note 86, at 5.
187 See id.
188 See Dias, supra note 97, at 6, 8.
189 Interview with Yasantha Kodagoda, supra note 149.
190 See id.
191 See id. The AG and the Criminal Investigation Department have also established units to focus on torture complaints. See U.S. Dept. of State, 2001, supra note 120, at 2540.
192 Interview with Yasantha Kodagoda, supra note 149; see also Working Group 1999, supra note 122, at 8, ¶34.
193 Interview with Yasantha Kodagoda, supra note 149; see also Working Group 1999, supra note 122, at 8-9, ¶¶34, 35.
194 Interview with Yasantha Kodagoda, supra note 149.
195 See Letter from K. Balapatabendi, Secretary, President, Sri Lanka, to R.K. Chandrananada de Silva, Secretary, Ministry of Defence, Sri Lanka (Feb. 12, 1998) (on file with The Presidential Secretariat) [hereinafter Balapatabendi letter]. The letter is entitled “Facilities Required by the Special CID Unit Investigating into Disappearances Reported by the Disappearance Commissions.” See id. (After securing an interview with Senior Superintendent of Police Lasantha De Silva in January 2000, he cancelled. He informed me that I had to petition the Ministry of Defense and go through the bureaucratic channels to secure permission for the interview.) The DIU, from its establishment in 1998, has suffered huge cuts in funding from the Ministry of Defence, forcing it to cut back its staff and weaken its ability to conduct investigations. See id. This becomes even more critical since the DIU is the sole source of evidence in disappearance cases. Interview with M.C.M. Iqbal, supra note 82.
196 Interview with M.C.M. Iqbal, supra note 82. Officially, the AG’s office claims that it is unable to have high conviction rates on account of the contradictory statements given by witnesses regarding the identity of abductors. See Dias, supra note 97, at 6.
197 Interview with M.C.M. Iqbal, supra note 82; see also Dias, supra note 97, at 6.
198 Interview with M.C.M. Iqbal, supra note 82; see also Dias, supra note 97, at 6.
199 See U.S. Dept. of State, 2001, supra note 120, at 2539. Officers in the armed forces who commit human rights offenses:
can be tried by either military or civil courts. In case of a summary trial before a military court, the punishment is of a disciplinary nature, such as reduction in rank, withholding of promotions or delay in promotions. In case of a court martial, the punishment can be imprisonment or discharge from service. If a prima facie case is established before a civil court, the officer has to be suspended from service.
Working Group 1999, supra note 122, at 8, ¶29.
200 See U.S. Dept. of State, 2001, supra note 120, at 2539.
201 See id.
202 Interview with M.C.M. Iqbal, supra note 82. “People who fail to prevent or punish their subordinates’ illegal acts are liable under the doctrine of command responsibility. Accordingly, the doctrine does not address actions but omissions.” Ilias Bantekas, The Contemporary Law of Superior Responsibility, 93 Am. J. Int’l L. 573, 575 (1999).
203 See Working Group 1999, supra note 122, at 8, ¶30. The Ministry of Justice claims that a bottleneck in criminal proceedings slows the entire process of bringing perpetrators to justice. See id.
204 Question or the Violation of Human Rights and Fundamental Freedoms in Any Part of the World, with Particular Reference to Colonial or Other Dependent Countries and Territories: Extrajudicial, Summary, or Arbitrary Executions: Report of the Special Rapporteur, Mr. Bacre Waly Ndiaye Submitted Pursuant to Commission of Human Rights Resolution 1997/61: Addendum: Visit to Sri Lanka, at ch. 4, sec. A2 U.N. Doc. E/CD.4/1998/68/Add.2 (1998) [hereinafter Ndiaye Report]. See generally Amnesty Int’l, Sri Lanka: Judgment in Landmark Case—Another Step Against Impunity, (Feb. 10, 1999) at http://web.amnesty.org/ ai.nsf/print/ASA370051999?OpenDocument.
205 See Ndiaye Report, supra note 204, at ch. 4, sec. A2. See generally Amnesty Int’l, supra note 204.
206 See Ndiaye Report, supra note 204, at ch. 4, sec. A2.
207 See id. See generally Amnesty Int’l, supra note 204.
208 See generally Amnesty Int’l, supra note 204.
209 See Dias, supra note 97, at 6. See generally Amnesty Int’l, supra note 204. In Sri Lanka, since there is no offense termed “causing disappearance,” cases of disappearance are tried under the offenses of “[k]idnapping or [a]bduction . . . in order to secretly or wrongfully confine and/or murder or may be so disposed of as to be put in danger of being murdered.” Dias, supra note 97, at 1.
210 Asian Hum. Rts. Comm’n, Sri Lanka: Statement on Embilipitiya Case, Brave Judgement in One Case of Children Disappearances, Thousands Still Not Investigated or Prosecuted, at http://www.ahrchk.net/hrsolid/mainfile.php/1999vol09no04/ 851 (Apr. 4, 1999).
211 See id.
212 See Gaps in the Krishanthy Kumarasamy Case, supra note 5, at ii.
213 See id.
214 See id.; see also Law & Soc’y Trust, supra note 86, at 127. The perpetrators also killed Kumaraswamy’s mother, brother, and one neighbor and raped and murdered another individual. See Gaps in the Krishanthy Kumarasamy Case, supra note 5, at 7.
215 See Law & Soc’y Trust, supra note 86, at 31; see also U.S. Dept. of State, 1999, supra note 117, at 2437.
216 See Law & Soc’y Trust, supra note 86, at 127.
217 Gaps in the Krishanthy Kumarasamy Case, supra note 5, at 7.
218 See id.
219 See id.
220 See id.
221 See U.S. Dept. of State, 2001, supra note 120, at 2537; see also Law & Soc’y Trust, supra note 86, at 20.
222 See U.S. Dept. of State, 2001, supra note 120, at 2537.
223 See id.; see also Chemmani Grave Probe Resumed, Tamil Times, July 15, 1999, at 4.
224 See U.S. Dept. of State, 2001, supra note 120, at 2537.
225 See id.
226 See id.
227 See id.
228 See id. The case is still pending, delayed by fighting near Jaffna that displaced key witnesses and prevented them from testifying. See U.S. Dept. of State, 2001, supra note 120, at 2537. The current cessation in the fighting will hopefully allow the trial to proceed. See Priyath Liyanage, Analysis: Sri Lanka’s Fragile Ceasefire, BBC News Online, (Feb. 21, 2001) at http://news.bbc.co.uk/hi/english/world/south_asia/newsid_1834000/1834788. stm.
229 See U.S. Dept. of State, 2001, supra note 120, at 2538–39. The impossibility of listing exact numbers of the disappeared stems from the inability to receive reliable information on security force operations due to the limited access to the northern and eastern parts of the country. Id. From January through September 2001, the HRC received 44 reports of disappearances in Vavuniya alone, although the reports have not yet been confirmed. See id.
230 See id.
231 See id.
232 See U.S. Dept. of State, 2001, supra note 120, at 2538–39.
233 See id.
234 See Working Group 1999, supra note 122, at 3-4, ¶8.
235 See For the Record 1998: The UN Human Rights System 3, Sri Lanka, Human Rights Internet (HRI), at http://www.hri.ca/fortherecord1998/vol3/srilankatr.htm (last visited Dec. 6, 2002) [hereinafter For the Record 1998].
236 Interview with M.C.M. Iqbal, supra note 82; see also Working Group 1999, supra note 122, at 3-4, ¶8. “The applicant is required to submit an affidavit along with the application setting out the grounds for his or her belief that the person in respect of whom a death certificate is sought has been missing for more than one year and that he or she truly believes such a person to be dead.” Working Group 1999, supra note 122, at 12, ¶52.
237 See Working Group 1999, supra note 122, at 12, ¶52.
238 Interview with M.C.M. Iqbal, supra note 82; see also Working Group 1999, supra note 122, at 3-4, ¶8.
239 See Working Group 1999, supra note 122, at 12, ¶53.
240 Id.
241 See U.S. Dept. of State, 2001, supra note 120, at 2536. Some argue that the AG has refrained from indicting high-level officials because of its connection with the DIU. Interview with M.C.M. Iqbal, supra note 82.
242 Amnesty Int’l, supra note 204.
243 See Amnesty Int’l, supra note 7, at 108–09.
244 See id. The UNWGEID arrived for a third time in Sri Lanka in late October 1999, after previous visits in 1991 and 1992. See id. In the 1991 visit, the UNWGEID transmitted 4,932 cases to the Sri Lankan government. Id. In total, the UNWGEID has documented 12,258 cases of disappearance in Sri Lanka. Id.
245 See Amnesty Int’l, supra note 7, at 108–09.
246 See id. at 108. Prevention of human rights abuses is obligatory through international human rights and humanitarian law and reinforced in judgments of international judicial bodies. See id. Prevention duties are outlined specifically in Article 1 of the Declaration on the Protection of All Persons from Enforced Disappearance, Principles 1 through 8 of the Principles on the Effective Protection and Investigation of Extra-Legal, Arbitrary and Summary Executions, and in judgments from the InterAmerican Court of Human Rights and the UN Human Rights Committee. See id.; Declaration on Enforced Disappearance, supra note 47, art. 1; Principles on the Effective Protection and Investigation of Extra-Legal, Arbitrary and Summary Executions, E.S.C. Res. 1989/65, U.N. ESCOR, U.N. Doc. E/65/89 (1989).
247 See Amnesty Int’l, supra note 7, at 108.
248 See id. at 136.
249 See U.S. Dept. of State, 2001, supra note 120, at 2536, 2540–42. The HRC has conducted some training courses on human rights and humanitarian law for the army. See Working Group 1999, supra note 122, at 13, ¶58.
250 See Amnesty Int’l, supra note 7, at 113. Such a duty, called “chain-of-command control,” entails clear regulations and procedures regarding detention and arrest, ensures such rules are followed, and provides for effective investigation procedures for breaches and adequate punishment through effective supervision. Id.
251 See id. at 113.
252 See id. at 114.
253 See Working Group 1999, supra note 122, at 14, ¶62.
254 See id. at 15, ¶63(f).
255 See Hum. Rts. Comm’n of Sri Lanka, supra note 165, at 3.
256 See Working Group 1999, supra note 122, at 13, ¶58
257 See id. at 10, ¶42.
258 See Amnesty Int’l, supra note 7, at 132. Officials involved in a disappearance sometimes cover up its occurrence by claiming that the prisoner has been released. See id. Prisoners should be released publicly to organizations and individuals who can verify their discharge. See id. Officials should also distribute certificates of release. See id.
259 See id. at 134. Lack of knowledge of the law by law enforcement officials is one reason why the legal requirement to inform the HRC of arrests and detentions has not been followed. See Working Group 1999, supra note 122, at 10–11, ¶45.
260 See Working Group 1999, supra note 122, at 11, ¶¶48,49.
261 See Hum. Rts. Comm’n of Sri Lanka, supra note 165, at 7.
262 See Amnesty Int’l, supra note 7, at 139.
263 See id. Legal obligations to conduct prompt and impartial investigations emerge from Article 13 of the UN Declaration on Enforced Disappearance, principles 9–17 of the Principles on Extra-Legal, Arbitrary and Summary Executions, and the UN Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions. Id. at 139.
264 See id. at 142.
265 Interview with M.C.M. Iqbal, supra note 82.
266 See id.
267 See Balapatabendi letter, supra note 195.
268 See Amnesty Int’l, supra note 7, at 150.
269 See id. at 150, 170.
270 See Ministry of Defence, supra note 151, at 1; see also Working Group 1999, supra note 122, at 5, ¶15.
271 Asian Hum. Rts. Comm’n, Sri Lanka: Thousands of Disappearances Established(Truth Comm’n Urged (Aug. 14, 2001), at http://www.ahrchk.net/hrsolid/mainfile.php/1997vol07no05/315/.
272 See Working Group 1999, supra note 122, at 5, ¶17.
273 See Roht-Arriaza, supra note 130, at 6–8.
274 Working Group 2000, supra note 76, at 3.
275 See Working Group 1999, supra note 122, at 14, ¶62.
276 Id. at 14, ¶63(c); Declaration on Enforced Disappearance, supra note 47, art. 1; see also Amnesty Int’l, supra note 7, at 110. While Article 4 clearly obligates states to follow procedures that address impunity, very few countries have amended their criminal laws to make acts of enforced disappearance punishable by appropriate penalties. Declaration on Enforced Disappearance, supra note 47; Working Group 2000, supra note 76, at 3, 26-27.
277 See Working Group 1999, supra note 122, at 15, ¶63(i).
278 See id.
279 See id; see also PTA, supra note 107.
280 Imtiaz Omar, Rights, Emergencies and Judicial Review 57 (1996).
281 See Roht-Arriaza, supra note 130, at 7.
282 See Goldstone, supra note 12, at 609. Only after lasting and definite peace should the government perhaps consider establishing a truth commission to deal with impunity and provide a healing process for those directly affected by the war. See id. A revival of hostilities would eliminate any gains such a commission might achieve. See id.
283 See Working Group 1999, supra note 122, at 9, ¶35.
284 See id. at 9, 14, ¶¶35, 63(b).
285 See Amnesty Int’l, supra note 7, at 160. Further, the trials should be in civilian courts, staffed with diligent prosecutors and sufficient resources. See id. Family members and victims should also be provided adequate representation. See id.
286 Declaration on Enforced Disappearance, supra note 47, art. 18; Working Group 2000, supra note 76, at 26, ¶124.
287 See Amnesty Int’l, supra note 7, at 162. Universal jurisdiction allows for states other than those where the crime was committed to implement criminal proceedings. See id. “Liability to prosecution should be extended fully over space, over time, and over the full range of people responsible.” Id.
288 See id. at 108.
289 See Macan-Markar, supra note 2, at 15 (quoting Doctor William Haguland of Physicians for Human Rights).
290 See Balapatabendi letter, supra note 195.
291 See BBC New Online, supra note 125.