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Discussing
command responsibility and questions of impunity
It needs to be said at the outset that the Kanapathipillai Machchavallavan Case cannot be validly cited as authority for any proposition relating to a judicial denial of the doctrine of command responsibility. This is for the simple reason that the two sons of the appellant had been arrested and detained by the Plantain Point Army Camp in a context where the respondent army officer who was cited in the petition was not the commanding officer of the camp at that time. Nor was he, on the facts as disclosed in the judgement, found to be responsible in any way for the arrest or detention of the ‘disappeared’ persons. Responsibility was imposed upon the state in this context, on a creative interpretation of Article 13(4) of the Constitution, (commented upon in a previous issue of this column), which stipulates that one cannot be deprived of life except by order of a competent court. The Bindunuwewa case, of course, merits a more complex analysis. In this context again however, it would be far too wide an assertion to state that command responsibility (or rather, the vicarious liability of persons in authority whether they are army officers, police officers or prison officers in situations where their subordinates act in violation of the law), has not been recognised at all by the judiciary in Sri Lanka. The doctrine has been given effect to where errant behaviour of custodial officers is concerned in situations where extraordinary security concerns have not predominated. Thus,
where acts of torture in a police station are concerned for instance,
the responsibility of the officer-in-charge (OIC) of that police
station has been asserted by the Court on more than one instance.
Among the more recent cases is Silva vs Iddamalgoda (2003 [2] Sri
LR, 63), where an alleged army deserter arrested by the police,
died whilst in remand custody. He was held liable due to his not ensuring that the petitioner was being treated as the law required; in other words, by virtue of his culpable inaction including failure to monitor the activities of his subordinate police officers that would have prevented further ill treatment of the petitioner and investigation of any misconduct. In
Wewelage Rani Fernando (SC (FR) No 700/2002, SCM 26/07/2004) prison
officials were found liable for the death of a detainee, (even though
there was no evidence of their direct implication in the assault
on the deceased), on the judicial finding that there had been dereliction
of their duties. These cases may be distinctly distinguished from instances that have involved actual or perceived threats to the security of the state where the judicial response has been far more stringent. A very good example of this judicial withdrawing was Brigadier Rohan Parakrama (‘Parry’) Liyanage’s plea in 1999 that his constitutional right to equality had been violated by his non-promotion as Major General despite his having been acquitted of any criminal responsibility in the abduction of fifty three schoolboys in Embilipitiya and the disappearances of some of them for all time. He was the Co-ordinating Officer, Ratnapura at that time with the Sevana Army camp at which the ‘disappeared’ boys were kept, coming under his direct supervision. The judgement of the Court in this case is useful for analysis of the judicial response to the doctrine of command responsibility in extraordinary times of conflict (see SC Application No; 506/99, SCM 25.11.99). Though the judges acknowledged that Brigadier Liyanage did occupy a place in the chain of command regarding the Embilipitiya “disappearances, they opined that other officers below and above him in that chain of command had been promoted and there appeared to be no rational reason why he should have been singled out from those who might have been held accountable because of their positions in the chain of command. He was not, in any way, directly implicated in the “disappearances” and his blameworthiness was neither more nor less than that which was attributable to all those in the chain of command.” Accordingly, compensation was ordered to be paid for infringement of his rights and his promotion given effect to. The fact that the Brigadier was, in fact, never promoted despite the judgement of the Supreme Court is, of course, a different story altogether. Insofar
as the Bindunuwewa case is concerned, the UTHR criticisms in respect
of prosecution strategy employed in the case is harsh. The High
Court had ruled the accused police officer on guard duty at that
time, criminally responsible on the basis that he had the ability
and the means by way of troops to control the situation which led
to the massacre of twenty seven detainees and injuring fourteen
others, which he did not employ. The applicability of the doctirine of commannd respons-ilibility in times of war or conflict is best set out in Article 28 of the Rome Statute establishing the International Criminal Court in 1998 which impute responsibility where a commander either knew or should have known that such crimes were being committed by forces effectively under his or her command and failed to take all necessary and reasonable measures to prevent the commission of the crimes or to have them investigated. Its acknowledgement in that particular context in Sri Lanka jurisprudence remains to be categorically affirmed in an appropriate case. |
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