U.S. Envoy to Visit Sri Lanka as Pressure Builds for War Crimes Inquiry

by Gardiner Harris, ‘The New York Times,’ January 30, 2014

“There is no way he can allow an investigation because an international probe that asks chain-of-command type of questions will lead directly to the Rajapaksas themselves,” Mr. Saravanamuttu said in an interview. “Literally and figuratively, President Rajapaksa must live and die in power.”

Whether the country’s restive north will remain peaceful without further reconciliation efforts is a crucial question. The army continues to occupy thousands of homes and administer its own farms, factories and resorts on appropriated land, for which the government has paid little or no compensation.

NEW DELHI — A top State Department official is expected to arrive in Sri Lanka on Friday, just three days after the United States announced that it would again seek a resolution at the United Nations Human Rights Council pressing for an investigation into allegations of war crimes in Sri Lanka.

Nisha Biswal, the assistant secretary of state for Central and South Asian affairs, is expected to meet with government officials, members of the opposition and others in Colombo, the capital. She is also expected to travel to Jaffna, a city in the heart of the Tamil-dominated Northern Province of Sri Lanka.

The visit comes as relations between the United States and Sri Lanka have become increasingly frosty, largely because, nearly five years after the end of a nearly 30-year civil war in which government forces battled the Tamil Tigers — a notoriously brutal insurgent group — the Sri Lankan government has shown little appetite for any robust investigation into possible war crimes.

Keheliya Rambukwella, a government spokesman, said in a phone interview that Ms. Biswal’s visit was an opportunity for the United States to “see firsthand the progress Sri Lanka has made in its reconciliation efforts.”

Two resolutions pressing the Sri Lankan government to investigate war crimes have already been passed by the Human Rights Council, but this time the United States may ask that an independent international investigation be conducted, one that does not depend on the government, human rights advocates said.

The Northern Provincial Council, now dominated by Tamils after elections in September, voted this week for just such an independent investigation, a move that was criticized by government officials in Colombo.

Ananthi Sasitharan, a member of the council, said she was eager to meet with Ms. Biswal during her visit to Jaffna. Ms. Sasitharan said the council’s support of an international investigation reflected the demands of its constituents.

“We want to present our case” to Ms. Biswal, Ms. Sasitharan said in an interview. “Her visit to Jaffna will be greatly welcomed.”

Videos and pictures of what appear to be executions of civilians have leaked out of Sri Lanka in recent years, adding to a mountain of evidence suggesting that the Sri Lankan government killed 40,000 people, many of them civilians, in the war’s final stages in 2009.

Lalith Weeratunga, the permanent secretary to the Sri Lankan president, is in Washington this week to lobby against a further resolution from the Human Rights Council. Mr. Weeratunga said Wednesday that the government needed several more years before any international investigation into suspected war crimes could be started.

“After 26 years of conflict, we want to make it a sustainable peace,” he said, according to local news media reports.

Mr. Weeratunga said that if Sri Lanka were forced into undertaking such an investigation, the government would extend the inquiry back to the 1980s, when India conducted military operations in the country. Indian peacekeeping troops have been accused by some human rights groups of committing abuses during operations against the Tamil Tigers, who refused to lay down arms after an Indian-mediated peace pact. Revisiting such allegations “will upset our relationship with India,” Mr. Weeratunga was quoted as saying in the reports.

Alan Keenan, a senior analyst at the nonprofit International Crisis Group, said India’s support for a resolution calling for an international investigation could be crucial.

“The U.S., Britain and others have come to a conclusion that for the truth to be established, it needs to be done by an outside body,” Mr. Keenan said.

The end of the insurgency has been a boon for Sri Lanka’s economy as well as the political fortunes of the dominant Rajapaksa family. Roads have been rebuilt, tourists have returned, and the pervading sense of unease that gripped the country for decades has largely evaporated.

President Mahinda Rajapaksa is popular in Sri Lanka because of this turnaround, but an independent investigation of conduct during the war would be terribly risky for him, said Paikiasothy Saravanamuttu, the executive director of the Center for Policy Alternatives, a public policy research group in Colombo.

“There is no way he can allow an investigation because an international probe that asks chain-of-command type of questions will lead directly to the Rajapaksas themselves,” Mr. Saravanamuttu said in an interview. “Literally and figuratively, President Rajapaksa must live and die in power.”

Whether the country’s restive north will remain peaceful without further reconciliation efforts is a crucial question. The army continues to occupy thousands of homes and administer its own farms, factories and resorts on appropriated land, for which the government has paid little or no compensation.

Thousands are still missing. S. Illanagai, a mother of two, is still looking for her husband, who was forcibly conscripted by the Tamil Tigers and who surrendered to government troops at the end of the war. “Since then we have not seen or heard from him, and I came to Colombo hoping that the authorities here would give me a clearer answer,” she said Thursday. “They claim to have no information on his whereabouts.”

Sri Lanka Countries with High Religious Hostility

by ‘The Republic Square,’ location indeterminate, January 16, 2014

In some countries, violence toward religious minorities intensified from the levels reported in previous years. In Buddhist-majority Sri Lanka, for example, monks attacked Muslim and Christian places of worship, including reportedly attacking a mosque in the town of Dambulla in April 2012 and forcibly occupying a Seventh-day Adventist church in the town of Deniyaya and converting it into a Buddhist temple in August 2012

Two churches in Hikkaduwa were attacked last Sunday. The Assembly of God church and Calvary free churches were attacked during Sunday Morning mass.

Video footage, aired by a Sri Lankan television channel, showed monks hurling stones, destroying pictures, and burning documents with the help of protesters at the sites.

Police were reportedly called by the pastors to when the attacks started. Police Spokesperson Ajith Rohana admitted that police were unable to stop the attack due to the small number of personnel present.

Police on Monday said that 24 people were identified as attackers and will be arrested. Eight of the attackers (who will be arrested) were monks, said the Police Spokesperson. No arrests have been made so far.

Another prayer centre in Homagama was reportedly torched during the early hours of Sunday.

A new research released by the Pew Research Center categories Sri Lanka as a country with “very high” social hostilities along with Syria, Lebanon, Bangladesh, Thailand, and Myanmar.

2013

Pew Forum.org

In some countries, violence toward religious minorities intensified from the levels reported in previous years. In Buddhist-majority Sri Lanka, for example, monks attacked Muslim and Christian places of worship, including reportedly attacking a mosque in the town of Dambulla in April 2012 and forcibly occupying a Seventh-day Adventist church in the town of Deniyaya and converting it into a Buddhist temple in August 2012.4

HRW Annual Report: Sri Lanka

by Human Rights Watch, New York, January 21, 2014

“The Sri Lankan government makes a lot of claims about pursuing accountability for wartime abuses, but the world is still waiting to see some results,” said Brad Adams, Asia director at Human Rights Watch. “It’s clearer than ever that an independent international investigation is needed to make genuine progress in providing justice for victims.”

Sri Lanka

Sri Lankan Tamil women hold up photographs of their missing sons during a protest against the Sri Lankan government in Colombo on March 5, 2013.

Download the Tamil translation >>

http://www.hrw.org/world-report/2014/country-chapters/sri-lanka

The Sri Lankan government of President Mahinda Rajapaksa made little progress in 2013 in addressing accountability for serious human rights abuses committed during the country’s nearly three-decades-long civil war, which ended in 2009. In March, the United Nations Human Rights Council (HRC) adopted a second resolution in as many years that called on Sri Lanka to implement the recommendations made by its own Lessons Learnt and Reconciliation Commission (LLRC) and provide accountability for alleged war crimes committed by both sides in the civil war. The government claimed it was implementing the LLRC recommendations, but its claims were difficult to verify and accountability efforts lacked credibility.

The year saw an escalation in attacks by militant Buddhist groups against Hindus and Muslims.

The independence of the judiciary came under question after the Rajapaksa government orchestrated the impeachment of Chief Justice Shirani Bandaranayake in December 2012 after she had ruled against the government in a major case.

Elections for three provincial councils were conducted in September. Independent observers reported dozens of incidents of intimidation, violence, and improper military interference. The Tamil National Alliance (TNA) won a large majority in the Northern Provincial Council, an ethnic Tamil-majority area that was the site of much of the fighting during the civil war.

By September, the government was detaining 230 of the estimated 12,000 members and supporters of the defeated Liberation Tigers of Tamil Eelam (LTTE) held at the end of the civil war for “rehabilitation.”

Accountability

Sri Lanka’s failure over several years to address war crimes allegations prompted the HRC in March to issue a resolution calling on Sri Lanka to independently and credibly investigate violations of international humanitarian and human rights law. The resolution also called on UN High Commissioner for Human Rights Navi Pillay to give an oral update on the human rights situation in Sri Lanka during the HRC’s September session, and to present a written report at the March 2014 session.

Following the HRC resolution, the government issued several updates regarding its implementation of LLRC recommendations, including investigations into a few war crimes allegations. Many of its claims were difficult to verify due to lack of government transparency, and, even if accurate, in important respects fell far short of the steps called for in the resolution.

Special army courts of inquiry established in 2012 wholly exonerated the army of any laws of war violations despite significant evidence to the contrary. While the government arrested 12 members of the policeSpecial Task Force as part of its investigation into the murder of five Tamil youths in Trincomalee in January 2006, it failed to arrest senior police officials implicated. In response to LLRC concerns about enforced disappearances, the government established the latest in a long line of special commission with a limited mandate and no clarity as to whether the government would publicize its findings.

High Commissioner Pillay travelled to Sri Lanka in August. Her September oral report to the HRC was a scathing critique of the government’s failures on post-war accountability. Pillay said she found no evidence of government efforts “to independently or credibly investigate the allegations” of war crimes and reported that the government had failed to implement many of the LLRC recommendations. Pillay said that the separation of the police from the Ministry of Defence, a key LLRC recommendation, remained incomplete as the police were placed under the command of a former army officer.

Torture and Rape

Torture and other ill-treatment of persons in custody by the security forces has been a widespread problem both during and since the armed conflict. Human Rights Watch published new evidence in February that rape and sexual violence has been a key element of broader torture of suspected LTTE members and supporters even since the war’s end. The torture is used to obtain “confessions” of LTTE involvement, and to instill terror in the broader Tamil population to discourage involvement with the LTTE.

The government rejected these findings and claimed they were fabrications by individuals seeking to embellish their overseas asylum claims. Human Rights Watch is unaware of any government investigations into the reported sexual abuse.

Several European countries have since suspended deportations of Tamils with connections to the LTTE, finding them to be at risk of torture on return. UNHCR revised its guidelines on assessing asylum claims in December 2012, and recommended that persons with certain links to the LTTE be regarded as being at risk on return.

Arbitrary Detention and Enforced Disappearances

Sri Lanka’s Prevention of Terrorism Act gives police broad powers over suspects in custody and is the law most commonly invoked by officials to justify prolonged detention without trial of security suspects. It is still in regular use. The government asserts it has made available comprehensive lists of the names of those detained under the law as well as their places of detention, but family members in 2013 reported difficulty accessing the information. Pillay said during her trip in August that she had “never seen this level of uncontrollable grief” when visiting with families of the forcibly disappeared in northern Sri Lanka.

Civil Society Organizations and Media Freedom

Civil society organizations and media continue to face arbitrary restrictions and intimidation. In June, the government proposed a dangerously ambiguous media code that would have prohibited 13 types of substantive speech, including content that “offends against expectations of the public, morality of the country, or tends to lower the standards of public taste and morality.” Also prohibited would have been any content that “contains material against the integrity of the Executive, Judiciary, and Legislative”—which could have been interpreted as barring criticism of the government. The proposed code was withdrawn in the face of a storm of negative media coverage.

The government continues to block public access to certain news websites critical of the government. Several cases of journalists killed or “disappeared” in recent years remained unsolved.

Activists and organizations, particularly those working in the north and east, report ongoing harassment and intimidation. Pillay reported that people who she met with in the north and east were visited by security forces within hours of her visit. Instead of investigating these reports, the government denied Pillay’s allegations and demanded the names of her sources. Repression by the government is not limited to the north and east: in August, the army opened fire on protesters in Weliweriya demanding clean drinking water, killing three.

In July, a senior Sri Lankan diplomat launched a public attack on Callum Macrae, producer of “No Fire Zone,” a documentary film about alleged war crimes at the end of the civil war, tweeting suggestions that Macrae was a terrorist receiving “blood money” from the LTTE. The government did not censure the diplomat for his remarks, and a Channel 4 crew including Macrae was subjected to continual harassment during the Commonwealth summit in November.

A disturbing trend was the rise in violence against religious minorities, led largely by the militant Buddhist group Bodhu Bala Sena (BBS). The government did little to investigate or prevent these attacks. During an ongoing campaign by the BBS targeting Sri Lanka’s Muslim population, the secretary to the Ministry of Defence, the president’s brother, was the group’s guest at a public event. In her September oral report to the HRC, High Commissioner Pillay expressed alarm at the rise in hate speech against religious minorities, and called for more forceful government intervention to prevent violence.

Military Abuses in the North and East

The government contends to have considerably decreased its military presence in the north and east, but credible accounts indicate that military personnel still frequently intervene in civilian life. The Defence Ministry and army websites both regularly post articles about the role of the military in civilian affairs that appear intended to exert control over the local population and development. Independent observers of provincial council elections in September expressed concern about military campaign activities in favor of the ruling party there, and the resulting heightened sense of insecurity and tension among the Tamil population ahead of the elections.

Women and girls in the north and east remained especially vulnerable to sexual harassment and violence that the army neither prevented and may have contributed to. Women’s rights groups working in Tamil areas reported particular difficulty documenting abuses because of an oppressive military presence.

Key International Actors

At the March HRC session, the government unsuccessfully tried to block the council from adopting a resolution focusing on accountability for serious wartime abuses. The resolution, backed by the United States and India among others, sets the stage for calling for an independent investigation at the 2014 HRC session if Sri Lanka does not take meaningful steps to implement the resolution.

Canadian Prime Minister Stephen Harper, as well as the prime minister of Mauritius, did not attend the Commonwealth Heads of Government Meeting (CHOGM) in November in Colombo because of human rights concerns. The prime minister of India also did not attend the summit, citing domestic concerns. The human rights situation in Sri Lanka and lack of accountability for wartime atrocities became the focus of media coverage. United Kingdom Prime Minister David Cameron attended the summit, and spent much time touring war-ravaged parts of the north and talking to local activists. He publicly said the UK would back an international investigation into war crimes if the Sri Lankan government did not undertake an independent investigation, a position supported by the US and Canada.

China kept up its high-profile engagement and investment in Sri Lanka and vocally opposed the HRC resolution. After pressing for Sri Lanka to hold meaningful provincial council elections, India continued to call for the full implementation of the 13th amendment to the constitution, which calls for devolution of powers to the provinces.

—–

In International Spotlight, Accountability Stymied; Activists Under Assault
JANUARY 21, 2014
  • A Tamil woman cries as she holds up an image of her disappeared family member during the war against Liberation Tigers of Tamil Eelam (LTTE) at a protest in Jaffna on August 27, 2013.

    RELATED MATERIALS:

The Sri Lankan government makes a lot of claims about pursuing accountability for wartime abuses, but the world is still waiting to see some results. It’s clearer than ever that an independent international investigation is needed to make genuine progress in providing justice for victims.

                                                                                                                                                                            Brad Adams, Asia director

(New York) – Sri Lanka made little progress in 2013 in accountability for serious human rights abuses committed during the country’s civil war that ended in 2009, Human Rights Watch said today in its World Report 2014. As the United Nations and international condemnation escalated, human rights activists and journalists critical of the government continued to face intimidation and threats.

“The Sri Lankan government makes a lot of claims about pursuing accountability for wartime abuses, but the world is still waiting to see some results,” said Brad Adams, Asia director at Human Rights Watch. “It’s clearer than ever that an independent international investigation is needed to make genuine progress in providing justice for victims.”

In the 667-page World Report 2014, its 24th edition, Human Rights Watch reviews human rights practices in more than 90 countries. Syria’s widespread killings of civilians elicited horror but few steps by world leaders to stop it, Human Rights Watch said. A reinvigorated doctrine of “responsibility to protect” seems to have prevented some mass atrocities in Africa.  Majorities in power in Egypt and other countries have suppressed dissent and minority rights. And Edward Snowden’s revelations about US surveillance programs reverberated around the globe.

The Sri Lankan government responded to a March resolution by the United Nations Human Rights Council by announcing various actions to provide accountability in accordance with its own Lessons Learnt and Reconciliation Commission. While some of these are positive – such as arresting some of the suspects in the 2006 “Trinco Five” killings and beginning a six-month nationwide population survey to determine the civil war’s toll – both their outcome and broader impact on accountability is uncertain. The UN human rights chief, Navi Pillay, after a week-long visit in August, said she found no credible evidence of any progress.

Several governments used the November Commonwealth Heads of Government Meeting in Colombo to spotlight the lack of accountability. Prime ministers of Canada, Mauritius, and India pointedly did not attend. UK Prime Minister David Cameron spoke out on rights issues, visiting the predominantly Tamil town of Jaffna and supporting an international inquiry for “the particularly dreadful things that happened at the end of the war.”

Sri Lankans who criticized the government remained subject to harassment or threats, Human Rights Watch said. Pillay reported that the government was heading in an “increasingly authoritarian direction.” People with whom Pillay met during her trip were later visited by members of the security forces. State media continued to name and attack rights activists, particularly those working on accountability issues.

Members of the ethnic minority Tamil community deemed to have ties to the defeated Liberation Tigers of Tamil Eelam (LTTE) faced serious abuse. Torture, rape, and ill-treatment in custody by the security forces remain widespread. Although the government rejected allegations of torture of detainees, several European countries suspended deportations of Tamils linked to the LTTE, finding them to be at risk of torture on return.

“As 2014 begins, increased international pressure in support of basic rights is desperately needed to reverse a course that is threatening democratic rule in Sri Lanka,” Adams said.

Enforced Disappearances in Sri Lanka: 2006-2013

by Watchdog, ‘Groundviews.org,’ Colombo, January 9, 2014

This is a summary of a longer report. Please download it as a PDF here or read it online here. All photos taken and provided by the author.IntroductionAccording to Article 7, paragraph 2(i) of the Rome Statute[1], an Enforced disappearance is defined as “…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”.

Often when addressing the issue of enforced disappearances, the focus is on either the disappeared person, or the perpetrator. Rarely is the focus on the families that are left behind to cope with their grief and pursue justice for their disappeared family members and themselves. In a country like Sri Lanka, where no official structures are in place to provide recourse and render comfort to the families of the disappeared, the extent of their vulnerability is largely dependent on their awareness of their rights, their access to justice and available support systems.

The objective of this Watchdog report is facilitate the criminalization of enforced disappearances in Sri Lanka, recognize and uphold the rights of the families of those who have disappeared and repeal the draconian Prevention of Terrorism Act No 48 of 1979, under the auspices of which the State and its organs carry out enforced disappearances.

Recent incidents

The 70s, 80s and 90s saw enforced disappearances in Sri Lanka at their peak. This coincided with the two JVP- led insurrections and the armed ethnic conflict which commenced in 1977. While enforced disappearances were sporadic during the early 2000s, with the election of Mahinda Rajapakse as President in 2005 and the onset of Eelam War IV in 2006, they became widespread and systematic once more. Since then enforced disappearances have occurred island-wide, but more so in the highly militarized North and Eastern Provinces and the capital, Colombo, targeting dissenting voices and the Tamil community.

A. Jeevaraja, a first year Advanced Level student was forcefully conscripted by the LTTE in the months preceding the conclusion of armed hostilities. On 24th March 2009, Jeevaraja, who had sought refuge at the Valaignarmadam Church along with several others, had been forcefully taken away by the LTTE. His family had last seen Jeevaraja on 19th April while they were being displaced to Mullivaikkal. His father claims that he had heard reports from friends and neighbours that Jeevaraja had escaped from the LTTE and had been seen crossing over to Government territory just before the conclusion of the war. M. Balakrishnan, a father of two, was last seen on 18th May 2009 while surrendering at the Sri Lanka Army checkpoint in Omanthai, Vavuniya. Rajakumari, Balakrishnan’s wife, initially a resident of the Menik Farm IDP camp had handed over a letter to the Commander- in- charge of her zone at Menik Farm regarding her missing husband. She had also formally lodged complaints about her husband’s disappearance at the ICRC, the National Human Rights Commission (NHRC) and the Criminal Investigation Department (CID). In the four years since her husband’s disappearance Rajakumari has also visited the Boosa detention camp and the CID headquarters in Colombo. She is yet to hear of her husband’s whereabouts. In June 2009, Ratnam Ratnarajah, one of six siblings and a second year engineering student at the University of Moratuwa, originally from Kilinochchi, disappeared in Vavuniya while on his way back to University.

In June 2013, 15- year old Sivasooriyakumar Sanaraj of Vavuniya did not return home after school. Nearly 6 months after his disappearance the police are yet to make any progress, even while two suspects have been identified in relation to his abduction. In September, Karthigesu Niruban, a teacher, originally from Kopay (Jaffna), was abducted in the vicinity of the Vavuniya Central Bus Station and has not been heard from since. In November 2013, a father of one from the Vanni was abducted in a white van by 6 men, blindfolded, detained at two separate locations for 10 days and then dropped off in a suburb of Colombo.

Also, in parallel developments, families of the disappeared from the North were blocked from attending non-violent demonstrations in Colombo by State security forces on two occasions in 2013[2][3] (the latter demonstration was part of the Human Rights Festival organized by civil society actors in the South, to coincide with the Commonwealth Heads of Government Meeting). Earlier in the year, during the UN High Commissioner for Human Rights, Navanethem Pillay’s visit to Sri Lanka, following her speech commemorating International Day of the Disappeared in Colombo on August 30, families of the disappeared from the North and East were intimidated and temporarily blocked from exiting the premises by Pro-Government protesters. Also during Pillay’s visit, this time to the North, on August 27, families of the disappeared protesting outside the Jaffna Public Library, where she was meeting with Government officials, were denied a meeting with her, as she was sneaked out of the back entrance of the Library by State security personnel.[4] Similarly, on November 15, 2013, families of the disappeared who protested in Jaffna in the hope of meeting visiting British Prime Minister, David Cameron, too were violently blocked from meeting him. Mothers and clergy were severely manhandled by the Police[5]. Further, a local human rights activist from Mannar, Sunesh Soosai, actively involved in championing the cause of disappearances in the North, and his family, was threatened by unidentified persons (suspected to be State intelligence officers), when they visited his home and made a threatening phone call to him on November 21[6] 2013. On 10th December 2013, the Committee for the Investigation of Disappearances organized a protest in Trincomalee to mark World Human Rights Day. Around 100 family members of those who had disappeared, activists and Provincial Council Members of the Tamil National Alliance (TNA) had gathered at the Trincomalee Bus Station. The protest was then attacked by around 30 masked men who tore placards and assaulted those who had gathered. The convener of the Committee for the Investigation of Disappearances, Sundaram Mahendran, was injured during the assault and was admitted to hospital[7][8][9].

This particular report aims to highlight and reinforce the rights of the families of those who have disappeared. It will also attempt to highlight the severe restrictions imposed in exercising these rights by in Sri Lanka by the State.

Article 24 of the International Convention for the Protection of All Persons from Enforced Disappearances (ICPPED) provides a broad definition of the term ‘victim’, which incorporates not only the disappeared person, but also all others made to suffer as a result of an enforced disappearance. The families are made to suffer due to the mental torture caused by the stress and anguish of not knowing the whereabouts and welfare of their loved ones indefinitely. Therefore, even though Sri Lanka is not party to the ICPPED, having ratified both the International Convention Against Torture (ICAT)[10]and the International Covenant on Civil and Political Rights (ICCPR)[11], the State is obligated to ensure the mental and physical wellbeing of its citizens. Sri Lanka’s obligations to its citizens under the ICCPR and CAT provide avenues through which the mental harm caused to the families of the disappeared can be addressed.

Rights of the families

The Right to Know

Article 17.1 of the United Nations Declaration on the Protection of All Persons from Enforced Disappearance provides, “Acts constituting enforced disappearance shall be considered a continuing offence as long as perpetrators continue to conceal the fate and whereabouts of persons who have disappeared.”

The International Convention for the Protection of All Persons from Enforced Disappearances (ICPPED) explicitly states that families are entitled to knowledge pertaining to “progress and results of the investigation and the fate of the disappeared person.”[12]

The next of kin of the disappeared are not only affected by the disappearance itself, but also by the continuous refusal by the State and its agencies to acknowledge or substantially assist in locating and/or providing information regarding the disappeared individual.

Further, individuals who pursue the truth face intimidation at the hands of the perpetrators (usually members of State security organs or groups aligned to them) by way of constant interrogation, threatening phone calls, being followed by unmarked vehicles or near constant surveillance. This is in direct violation of the State’s obligations as set out in Principle 10 of the Updated set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (“Effective measures shall be taken to ensure the security, physical and psychological well-being and where requested, the privacy of victims and witnesses who provide information to the commission.”[13]).

Families are forced to abandon their pursuit of justice in fear of reprisal by the State. This is a travesty of justice as families are not only forced to suffer their immense grief and trauma in silence, but are also deliberately denied the right to seek justice and redress for the wrong done to them.

The appointment of a Presidential Commission of Inquiry in August 2013, in line with the Lessons Learnt and Reconciliation Commission (LLRC) recommendations, should be viewed against the backdrop of continued intervention by the State to deny access to information to the families about those who disappeared. It is feared that this Commission too would fail in its lofty goal of providing the families or next of kin with complete details about those who disappeared.

The Right to Justice

The right to justice is defined as a victim’s right to a fair trial, where the alleged oppressor is tried in a court of law and reparations are granted.[14]L. Joinet, in his groundbreaking report states that there can be no “lasting reconciliation[15]” without justice, and if forgiveness is to be granted by the victim, the perpetrator must first be made known to the victim, and forgiveness sought thereafter. The State is obligated to investigate violations and prosecute perpetrators, and if found guilty, punish them; failing which, the victim has the right to “institute (legal) proceedings themselves.”[16]

In Sri Lanka, institutional shortcomings of the judiciary also contribute towards the lack of justice for the disappeared. The lethargic and lackadaisical attitude of the judiciary is one of its most significant failings when giving effect to habeas corpus applications. Further, delays in the hearings and deliberation of habeas corpus applications, frequent postponements of cases and transfer applications made by respondent’s lawyers are other significant failings of the domestic judicial system.

Habeas corpus applications on behalf of disappeared persons are used in Sri Lanka primarily to exhaust all other possible domestic remedies. It is only after the habeas corpus application is filed that an international remedial is explored.

The presence of a comprehensive database comprising details and statistics of those made to disappear by successive Governments, Tamil militant groups, paramilitary groups associated with the security forces, extortionists and human traffickers is vital for the families to commence their quest for justice.

In a majority of cases of the disappeared in Sri Lanka, the perpetrators are individuals and/or groups linked to the State and it is quite clear that a largely compromised and ineffective judiciary is making very little headway in bringing them to justice.

Individuals named as perpetrators by the Commissions of Inquiry (CoI) in the past were never called to speak before any of the Commissions.

The Government of Sri Lanka with the entire State machinery at its disposal has demonstrated, through its inaction, the total lack of will to bring justice to the families of those who disappeared.

The Right to Reparation

Reparation to the families or next of kin of those who disappeared entails both individual and collective measures.

Reparation to these families is primarily assessed by monetary compensation and many governments resort to paying compensation since this would conveniently absolve it of the crime. ”[17] What these governments do not comprehend is that “behaving as if this monetary recompense has absolved them (the State) of any further responsibility, (it) further strengthens people’s perception of them as perpetrators.”[18]

In Sri Lanka, however, compensation is only awarded to victims who have been issued with a Death certificate (DC).

If the families of those who disappeared choose follow this process it would also translate as them having accepted the death of their loved ones. This would take the onus off the Government to be answerable and accountable to these families. The admission that the disappeared individual is dead is the only means to receive compensation and it is an unjust manipulation by the State[19]

The Association of Parents of Servicemen Missing in Action (PSMIA) in Sri Lanka has brought continuous pressure on the Government to specifically read as ‘missing’ rather than ‘killed’, when issuing death certificates to persons missing in action (MIA). Further, the LLRC rightly recommends that compensation cannot be considered in isolation and that it must be looked at in relation to the “overall resettlement and development strategy”[20].It is noted that “if there is no healing of memories, merely a repression, the untreated collective trauma could well turn into resentment and rekindle cycles of violence once again.”[21]

The Government in power and the State apparatus must realize that it is only by addressing the community’s grievances and ensuring that justice is served, is true reconciliation achieved and the natural course of healing take place. The Government should also facilitate symbolic measures intended to provide moral reparation.

On October 27th of every year, families of the disappeared, clergy and activists- commemoration The Monument for the Disappeared at the Seeduwa – Raddoluwa junction. There are no similar initiatives carried out by the State on behalf of victims or their families.

Guarantees of Non-Recurrence

A guarantee of non- recurrence could be provided by the complete disarmament of paramilitary groups linked to the security forces, the repeal of emergency laws (i.e. PTA) and the removal from office of senior officials implicated in grave human rights violations in the past.

The lack of will by the successive governments to carry out an island-wide disarmament programme is mainly because paramilitary groups linked to the security forces carry out a vast majority of their ‘dirty work’. As former US Ambassador to Sri Lanka, Robert O. Blake Jr. rightly observed, “Paramilitaries such as the…Karuna group and…EPDP have helped the Government of Sri Lanka (GSL) to fight the LTTE… by kidnapping and sometimes killing those ‘suspected’ (emphasis added) of working with the LTTE, thereby, giving the GSL a measure of deniability.[22] In many instances, the Government has continued to keep leaders of paramilitary groups in power and in cases, even promoted them with ministerial portfolios.

In almost all instances members of these groups and individuals linked to the perpetrators intimidate victims’ family members and pressure them into withdrawing applications from the High Court or into not pursuing justice.

An independent body comprising a panel of experts and professionals should be formed to devise a centralized system of data collection at the national level, integrating all information with regard to missing persons currently being maintained by different agencies.”[23]

Conclusion

Sri Lanka rates quite poorly in relation to international standards, norms and principles governing enforced disappearance. An independent international Commission must be set up to accept and evaluate submissions made by families, and ensure that due process is followed and justice is served.

There should be a comprehensive assessment of psychological and economic impacts caused to these families and the State should be obligated to provide for their mental and social welfare.  Families of the disappeared should be provided psychosocial assistance and trauma counselling from specialists, and allowed to form networks with other families and support organizations.

The families and their support networks should also be provided the backing of established religious institutions. A multi- religious body comprising clergy and community leaders from all major religious denominations should lead the initiative to highlight the plight of the disappeared and their families.

Enforced disappearances should be eradicated from being used as a political weapon by the State. The State must also wholeheartedly commit to using exclusively legal methods to combat illegal activity.

Recommendations

  1. Stop with immediate effect, continued abductions and disappearances[24]
  2. Stop with immediate effect, all threats, restrictions and harassment of families of disappeared persons, and those who support them in their search for truth and justice
  3. Initiate investigations by the Police and the NHRC into all incidents related to above, including, but not limited to those incidents mentioned in the Right to Know, Right to Justice and Case Study sections of this report
  4. Publish in all three languages and disseminate through media, reports of all Presidential Commissions of Inquiry that have looked into disappearances, plus Committees and any such bodies.
  5. Publish a report regarding the status of implementation of all recommendations of above reports, by 28th Feb 2014
  6. Make a plan of action to implement all remaining recommendations by all previous Commissions of Inquiries and the UN Working Group on Enforced & Involuntary Disappearances, by 31st March 2014 and ensure actual implementation – in consultation with families of disappeared persons, lawyers, human rights activists, opposition politicians etc. Also establish an independent monitoring body comprising HRDs, civil society actors, lawyers and opposition politicians
  7. Criminalize enforced disappearance in Sri Lanka, in consultation with families of disappeared persons, lawyers, human rights activists, opposition politicians etc.
  8. Repeal the Prevention of Terrorism Act (PTA)
  9. Ratify the International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED) and the Optional Protocol of the Convention Against Torture
  10. Invite the UN Working Group on Enforced and Involuntary Disappearances to visit Sri Lanka by June 2014
  11. For the NHRC to establish a special mechanism / Unit to expedite all pending cases of disappearances, and publish a status report as soon as possible, including segregated data
  12. To fast track all pending and future cases of Habeas Corpus, and guidelines issued in this regard
  13. To put in place an equitable scheme of reparations for all family members of the disappeared, irrespective of their background, occupation, status, time period of incident, location of residence and incident, ethnicity, religion etc.
  14. To ensure that the issuance of death certificates is only at the explicit informed request of families of disappeared person, and that no person should be forced or coerced to accept death certificates
  15. To ensure that families of disappeared persons applying for death certificates, reparations etc. are able to state to the best of their knowledge, the circumstances, alleged perpetrators and background of the victim, without any coercion or condition
  16. To ensure that there are no legal and practical impediments for those families of disappeared persons to pursue truth and justice through campaigns and legal means, even after application for death certificates and reparations
  17. To expand or revise the mandate of the present Commission on Disappearances, in consultation with families of disappeared persons, human rights activists, lawyers and opposition politicians, to ensure that it becomes an independent and credible mechanism with a strong international involvement

[2] WATCHDOG, Police detains families of disappeared from Northern Sri Lanka and prevents peaceful protest and petition to the UN,Groundviews.org – http://groundviews.org/2013/03/07/police-detains-families-of-disappeared-from-northern-sri-lanka-and-prevents-peaceful-protest-and-petition-to-the-un/ & Marisa de Silva, Police impeding the movement of Tamils, Groundviews.org –http://groundviews.org/2013/03/06/police-impeding-the-movement-of-tamils/

[3] Sri Lanka Campaign – Police block demonstrators going south, while Government mob block journalists going north – http://blog.srilankacampaign.org/2013/11/police-block-demonstrators-going-south.html  

[4] TamilNet, Navi Pillay taken through backdoor to avoid public in Jaffna –http://www.tamilnet.com/art.html?catid=13&artid=36594

[5] Ruki, British Prime Minister and TNA leaders shun families of disappeared in Jaffna, Groundviews.org –http://groundviews.org/2013/11/16/british-prime-minister-and-tna-leaders-shun-families-of-disappeared-in-jaffna/ & @gajenmahen, TwitLonger – http://www.twitlonger.com/show/n_1rrmt3u

[6] Sri Lanka Campaign, Reprisals start in Mannar –http://blog.srilankacampaign.org/2013/11/reprisals-start-in-mannar.html& Radarnews, Mannar Bishop requested to stop the atrocity of military investigators – http://www.radarnews.com/mannar-bishop-requested-to-stop-the-atrocity-of-military-investigators/

[7] BBC. Sri Lanka rally to protest against disappearances.http://www.bbc.co.uk/news/world-asia-25323892

[8] Colombo Telegraph. Families of Disappeared Attacked in Eastern Sri Lanka on Human Rights Day.https://www.colombotelegraph.com/index.php/families-of-disappeared-attack-in-eastern-sri-lanka-on-human-rights-day/

[10] UN General Assembly, International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at:http://www.unhcr.org/refworld/docid/3ae6b3a94.html

[11] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.unhcr.org/refworld/docid/3ae6b3aa0.html

[12] Article 24.2, UN General Assembly, International Convention for the Protection of All Persons from Enforced Disappearance…Ibid.

[13] Principle 10, UN Sub-Commission on the Promotion and Protection of Human Rights, Updated Set of principles for the protection and promotion of human rights through action to combat impunity, 8 February 2005, E/CN.4/2005/102/Add.1, available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/109/00/PDF/G0510900.pdf?OpenElement

[14] UN Sub-Commission on the Promotion and Protection of Human Rights, Question of the Impunity of Perpetrators of Human Rights Violations (civil and political), 26 June 1997, E/CN.4/Sub.2/1997/20, availablehere. (revised version)

[15] Ibid.

[16] Ibid.

[17] T. van Boven, Reparations: a requirement of justice, El sistema interamericano de protección de derechos humanos en el umbral del siglo XXI. Memoria del Seminario, Tomo I, second edition. Inter-American Court of Human Rights, San José, Costa Rica, (2003), pp.654.

[18] G. Samarasinghe, ‘Coping with emotions towards perpetrators of violence: An essay on two conflict areas in Sri Lanka’ (2002), Unpublished.

[19] A. A. M. Nizam, ‘Pilot Project launched to issue Death Certificates of Missing Persons in Sri Lanka’, Asia Tribune (2011), available at:http://asiantribune.com/news/2011/06/27/pilot-project-launched-issue-death-certificates-missing-persons-sri-lanka

[20] Report of the Commission of Inquiry on Lessons Learnt and Reconciliation (2011), Section 9.166, p. 365.

[21] D. Somasundaram, ‘Collective trauma in northern Sri Lanka: a qualitative psychosocial-ecological study’, International Journal of Mental Health Systems (2007), 1:5, pp. 28, available at:http://www.ijmhs.com/content/1/1/5

[22] The Guardian, ‘US embassy cables: Sri Lankan government accused of complicity in human rights abuses’, The Guardian (2010), available at:http://www.guardian.co.uk/world/us-embassy-cables-documents/108763

[23] Report of the Commission of Inquiry on Lessons Learnt and Reconciliation (2011), Section 5.48, p. 166.

[24] i.e. S. Sanaraj who disappeared on June 13th 2013 and K. Niruban who disappeared on September 19th, 2013.

Tamil Council to Count Sri Lanka War Casualties

by Agence-France Press, December 26, 2013

COLOMBO, December 26, 2013 (AFP) – The provincial government in Sri Lanka’s main Tamil region said Thursday it would compile its own death toll from the country’s ethnic war, saying an ongoing census would play down the number of casualties.

Tamil officials said the census ordered by President Mahinda Rajapakse last month would give a distorted picture because of its “flawed” terms of reference, arguing that a more credible alternative was needed.

“The council will work out the logistics of taking a count,” Dharmalingam Sithadthan, a senior member of the Northern Provincial Council, told AFP from the regional capital Jaffna.

“This is something we have to do because we don’t accept the government census.”

The United Nations has estimated that at least 100,000 people were killed in Sri Lanka’s 37-year separatist war with about 40,000 civilians killed in the final months of fighting in 2009.

The Rajapakse government kicked off its own census late November after disputes over the scale of the killings in the final phases of the war dominated a Commonwealth summit in Colombo earlier in the month.

Sri Lanka has repeatedly rejected allegations that its troops killed civilians while battling the separatist Liberation Tigers of Tamil Eelam, who were also accused of using civilians as a human shield.

While launching the government census in November, the head of the public administration ministry, P.B Abeykoon, said they had “nothing to hide”.

But Suresh Premachandran, a member of the Tamil National Alliance party who represents Jaffna in the national parliament, said the census had been designed to minimise the death toll.

Compilers of the census would only be able to ask survivors whether they had lost spouses, sons or daughters and would not be allowed to ask survivors about the fate of their parents, said Premachandran.

The census would also lack any input about casualties from survivors who have sought refuge.

“We strongly believe this is an attempt to give lower figures for war fatalities,” Premachandran said.

“For planning purposes of the council, we want the actual numbers, not watered down figures,” he added.

The provincial council says it needs comprehensive casualty figures to provide social services to widows, orphans and other victims of what was one of Asia’s longest and bloodiest conflicts in the post-colonial era.

Rajapakse, who is a member of the majority Sinhalese community, has rejected proposals for international investigators to conduct their own separate inquiry.

aj/co/erf