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Standard of the Easter Sunday PCoI: An inquiry into adequacy  

07 Mar 2021

By Dinesh D. Dodamgoda    Chapter 19 of the final report of the Presidential Commission of Inquiry (PCoI) into the Easter Sunday attacks attempts to examine state responsibility to protect against terrorism under the heading “Accountability”. It assesses the former President's and several senior public officials’ criminal responsibility. This article attempts to evaluate the adequacy of the criteria the PCoI adopted in assessing state responsibility to protect against terrorism.  The PCoI report says its mandate required it to identify all authorities responsible for failure to prevent the terrorist attacks and identify the authorities who failed to perform their duties and did not take proper action due to incapacity. In assessing responsibilities, the PCoI looked into two sources, namely written laws within the meaning of Article 170 of the Constitution and judicial pronouncements.   In the international context, however, the United Nations (UN) Terrorism Prevention Branch recommends a set of standards for UN member countries to understand the nature of the state responsibility to protect against terrorism. A working paper, “Preventing Terrorist Acts: A Criminal Justice Strategy Integrating Rule of Law Standards in Implementation of United Nations Anti-Terrorism Instruments”, prepared by the Terrorism Prevention Branch under the General Assembly Resolution 60-175 (2006) and published by the UN in 2006, designed to facilitate the task of advising national authorities by integrating the mandatory rule of law standards in the implementation of universal anti-terrorism instruments.    The inherent right to life    The UN working paper uses the state obligation to “protect life” as the basis for imposing state responsibility to protect against terrorism. The said obligation to protect life comes from the inherent right every human being has to life. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) provides that: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."  As the UN paper states, "to the average person, protecting the right to life means preventing its loss, not punishing those responsible for a successful or attempted deprivation. Protection by law thus demands legal measures to interrupt and interdict preparations for terrorist violence, not merely the identification and punishment of the perpetrators after a fatal event".  Hence, “proactive law enforcement” or legal measures a state should take to interrupt and halt preparations for terrorist violence stem from the right to life guaranteed by the ICCPR. Yet, a forward-looking, “proactive law enforcement” or “preventive criminal justice strategy” suggested by the UN Terrorism Prevention Branch against terrorist violence requires a lot: a comprehensive system of substantive offences, investigative powers and techniques, evidentiary rules, and inter-state co-operation mechanisms. The UN Terrorism Prevention Branch emphasises that such an integrated approach is necessary to implement the right to life guaranteed by the ICCPR.  Every country does not guarantee the right to life. Some countries constitutionally guarantee the right to life whilst some countries do not. For example, the US, the UK, Canada, France, Germany, New Zealand, and India guarantee the right to life. However, the Sri Lankan Constitution does not expressly recognise the right to life. Even the ICCPR Act No. 56 of 2007 does not recognise the right.     Global context    Terrorist violence occurred in countries that recognise the right to life and countries which do not recognise the right to life. We observe that many countries received intelligence regarding terrorist attacks in advance. Therefore, we should understand how those countries officially evaluated the state responsibility to protect against terrorism. This article will adopt a comparative view between countries that constitutionally recognise the right to life and Sri Lanka when trying to understand approaches adopted to evaluate “proactive law enforcement” obligation of states against terrorist violence. In the US, the 9/11 Commission Report, the official report of the 11 September 2001 terrorist attacks, found that the CIA (Central Intelligence Agency) and the FBI (Federal Bureau of Investigation) did not “well serve” both Presidents Bill Clinton and George W. Bush. The Commission found intelligence failures, placed blame on several institutions and officials, and made critical recommendations for reforms to prevent a similar attack. The Commission’s recommendations led to creating of the Office of the Director of National Intelligence (ODNI) and the National Counterterrorism Centre to replace the Terrorist Threat Integration Centre. Unlike the PCoI in Sri Lanka, the 9/11 Commission Report neither found any criminal liabilities of the President and the state operatives nor made recommendations to file civil or criminal charges against them. Furthermore, the report concluded who were the perpetrators and who was responsible for planning and executing the attacks.   The Intelligence and Security Committee report into the London terrorist attacks on 7 July 2005 had the following aims and objectives:  “The report examines intelligence and security matters relevant to the July terrorist attacks and focuses in particular on whether any intelligence which may have helped prevent the attacks was missed or overlooked; why the threat level to the UK was lowered before the attacks, and what impact this had; and what lessons were learned on the back of the attacks and how these are being applied, in particular: What reassessments of the threat have been made; and what is being done to increase coverage of the threat.”  As well as the US 9/11 Commission, the UK Committee also did not aim to find civil or criminal charges against the Prime Minister or senior officials. Furthermore, the Committee used the exact following words when blaming intelligence agencies for their failure to prevent the attacks. It will show the different attitudes the UK Committee and the PCoI in Sri Lanka adopted when blaming authorities for their failures. “This report sets out a number of conclusions and recommendations. These points should not overshadow the essential and excellent work the agencies have undertaken against the terrorist threat in the UK. We record that terrorist plots in the UK have been thwarted by the intelligence and security agencies since 11 September 2001, three of them since July 2005. Despite their successes disrupting these other plots, they did not manage to prevent the attacks that took place in London on 7 July 2005.”   Subsequently, this balanced approach was welcomed by the “Government Response to the Intelligence and Security Committee’s Report into the London Terrorist Attacks on 7 July 2005”, which was presented to Parliament by the Prime Minister by Command of Her Majesty. The report states: “The Government welcomes and endorses the Committee’s praise for the vital contribution made by the security and intelligence agencies in combating terrorist threats to the UK.”   In France, the Parliamentary Commission of Inquiry that looked into the Paris attacks in November 2015 recommended overhauling French intelligence services. Commission President Georges French said: “All the French attackers had been known to authorities, but these had not communicated with each other.” The Committee Chairman further noted that the report's aim was not to designate guilty parties but to make the general point that France’s intelligence system failed. Therefore, the committee proposed a single body like the US National Counter-Terrorism Centre.  The Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15 March 2019 in New Zealand identified failures within the firearm licensing regime and inappropriate concentration of resources on perceived level Islamist threats. It noted many lessons to be learnt and significant areas that require change. The commission found no failure within any government agencies that would have allowed the terrorist planning and preparation to be detected. Interestingly, Prime Minister of New Zealand Jacinda Ardern said after the release of the report: "While the Commission made no findings that these issues would have stopped the attack, these were failings nonetheless and, for that, on behalf of the Government, I apologise." That was the spirit both the Royal Commission and the Prime Minister of New Zealand had. Unlike the PCoI in Sri Lanka, the other commissions we considered pinpointed masterminds behind those attacks and did not recommend filing criminal charges against political or official authorities. They furthermore found failures of government agencies and made important recommendations for improvements to prevent similar attacks. Yet, all those countries we considered above constitutionally recognise the right to life, the basis the UN Terrorism Prevention Branch adopted to emphasise the state responsibility to prevent terrorist violence.    Terrorist violence   A reason for the US, the UK, France, and New Zealand not to bring civil or criminal charges against political or government authorities is the complex nature of the threat terrorism poses and the state of the counterterrorism capabilities the world has. There are no fool-proof counterterrorism capabilities in the world that can 100% guarantee to protect citizens from terrorist attacks. The world is still learning how to combat terrorism, especially suicide terrorism, effectively. It is a global incapacity. Hence, the UN Terrorism Prevention Branch considers that terrorism is a universal threat that necessarily requires a universal standard and co-operation in handling matters related to terrorism. The commissions in the US, the UK, France, and New Zealand found the authorities' failures and made recommendations to improve counterterrorism capabilities and systems. But, they did not try to bring civil or criminal charges against state authorities.  All the countries we considered above constitutionally recognise the right to life and have significantly acquired “proactive law enforcement” capabilities: a comprehensive system of substantive offences, investigative powers and techniques, evidentiary rules, and inter-state co-operation mechanisms of an advanced level. Yet, those commissions of inquiry did not bring or did not recommend to bring civil or criminal charges against state authorities. Therefore, we can observe that they have adopted an attitude beyond a linear perspective. That was the spirit that they had when inquiring into terrorist attacks. However, I do not sense such a spirit from the PCoI in Sri Lanka.  My conclusion is that the PCoI did not demonstrate in the report that it had a view to adopt a universal approach in inquiring into terrorist attacks; or, expert advisers had not guided the commission adequately. Therefore, the PCoI did not reveal the universal spirit it ought to have when inquiring into terrorist violence. It is a pity that we sent a wrong signal to the world, implying a narrow-minded vision that we handle terrorism in our way!  Anyway, we still do not know the masterminds behind the attacks; neither did the PCoI.    (The author is an Attorney-at-Law, holds an MSc on Global Security from the Royal Military College of Science in the UK, a researcher on terrorism, and a Fulbright Scholar on National Security Policymaking in the US)  


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