In views adopted by the UN Human Rights Committee in its seventy-eighth session, the Sri Lankan government has been called to account in respect of a complaint filed by a father from Trincomalee whose son disappeared while in army custody in 1990.
The complaint was filed under the Optional Protocol to the International Covenant on Civil and Political Rights, by which citizens can appeal to the Geneva-based UN body against the decisions of domestic courts in violation of Covenant rights. Appeals can also be lodged against state actions in violation of Covenant rights for which there is no effective national remedy.
While the views expressed by the Committee are not directly binding on a state party, they have considerable impact on the international human rights status of a country. The Committee's views are therefore, as a matter of practice, taken seriously by the country concerned.
The Committee found a violation of the rights to liberty and security and freedom from torture in respect of the son who 'disappeared' in army custody. The State was directed to expedite current criminal proceedings against individuals implicated in the disappearance and to ensure the prompt trial of all persons responsible for the abduction.
The State was also put under an obligation to provide the victims with an effective remedy, including a thorough and effective investigation into his disappearance and fate, his immediate release if still alive, adequate information resulting from its investigation, and adequate compensation for the violations suffered by the victim and his family.
Violation of the right to freedom from torture or cruel, inhuman and degrading treatment or punishment were also found in respect of the parents who, the Committee opined, have suffered "anguish and stress" caused by their son's disappearance and by the continuing uncertainty concerning his fate and whereabouts.
The Committee has indicated its wish to receive information from the government about the measures taken to give effect to the Committee's views, within three months.
The facts of the case revolve around the plea of a father, Jegatheeswaran Sarma, who had gone to Geneva alleging that the army had detained his son, Thevaraja Sarma, in Trincomalee during a military search operation. He identified a Corporal Sarath, among others, as responsible.
The State argued that this disappearance was an isolated act initiated solely by a minor officer without the knowledge or complicity of other levels within the military chain of command. The Committee rejected this position.
The victim also argued that that the State party had failed to investigate effectively where its responsibility -- and the individual responsibility of those suspected of the direct commission of the offences -- lay. It had given no explanation as to why an investigation was commenced some 10 years after the disappearance was first brought to the attention of the relevant authorities. Moreover, the investigation did not provide information on orders that may have been given to the low ranking officers regarding their role in search operations, nor did it consider the chain of command. It did not provide information about the systems in place within the military concerning orders, training, reporting procedures or other processes to monitor the activity of soldiers to either support or undermine the claim that the superior officers did not order and were not aware of the activities of their subordinates.
It was also alleged that there were striking omissions in the evidence gathered by the State party. Thus, the records of the ongoing military operations in this area in 1990 had not been accessed or produced, and no detention records or information relating to the cordon and search operation were adduced. Even though indictment was filed against Corporal Sarath, key individuals were not included as witnesses for the prosecution, despite the fact that they had already provided statements to the authorities and could have provided testimony crucial to the case.
In delivering its views, the Committee reasoned unequivocally that, for the purposes of establishing State responsibility, it is irrelevant that the officer to whom a particular disappearance is attributed acted outside the law, or that superior officers were unaware of his or her actions.
In this context, the definition of enforced disappearances contained in the Rome Statute of the International Criminal Court (Article 7) is also used to good measure. Here, "enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
The Committee concluded that where the violation of Covenant rights is carried out by a soldier or other official who uses his or her position of authority to execute a wrongful act, the violation is imputable to the State, even where the soldier or the other official is acting beyond his authority. In doing so, the Committee followed previous jurisprudence to this same effect by other regional tribunals, including the Inter-American Court of Human Rights in the Velasquez Rodriguez Case, and decisions of the European Court of Human Rights.
Thus, even where an official is acting ultra vires, the State will find itself in a position of responsibility if it provided the means or facilities to accomplish the act. Even more importantly, it was affirmed by the Committee in this instance that even if -- and this is not known in this case -- the officials acted in direct contravention of the orders given to them, the State may still be responsible.
