RW: Recurring Nightmare State Responsibility for “Disappearances” and Abductions in Sri Lanka

by Human Rights Watch, March 5, 2008

Human Rights Watch

2008 statement on report and at https://www.hrw.org/news/2008/03/06/sri-lanka-disappearances-security-forces-national-crisis


Summary (see below)

Who Is Responsible?

Who Is Being Targeted?

Unpunished Crimes

The Government’s Response

International Response

Key Recommendations

Note on Methodology

II. Background

The armed conflict

History of “disappearances” in Sri Lanka

III. Legal Framework

Sri Lanka’s obligations under international law

Sri Lankan national law

IV. Perpetrators and Victims

Perpetrators

Sri Lankan armed forces

Sri Lankan police

Pro-government armed groups

Karuna group

Eelam People’s Democratic Party (EPDP)

Liberation Tigers of Tamil Eelam (LTTE)

Victims

V. Patterns of “disappearances” and abductions

Northern Sri Lanka

Eastern Sri Lanka

Colombo

VI. Fate of the Missing

VII. State Response to the Crisis of “Disappearances”

Failure to investigate and establish accountability

Inadequacy of national mechanisms

Official denials

VIII. Sri Lanka and the International Community

Position of the international community

The government response to the international criticism

The need for a UN human rights monitoring mission

IX. Recommendations

To the government of Sri Lanka

To the Liberation Tigers of Tamil Eelam (LTTE)

To donor governments

Acknowledgements

Appendix I: “Disappearances” and Abductions Documented by Human Rights Watch

Northern Sri Lanka

Western Sri Lanka

Eastern Sri Lanka

Appendix II: Correspondence Between Human Rights Watch and Sri Lankan Institutions – Download PDF file (32 pages, 1.13 Mb)

I. Summary

His father opened the door, and the men pushed him aside and then forced us and the children into one of the rooms. Junith Rex came out of his room, covering himself with a bed sheet, and the men grabbed him by the bed sheet and seized him. They wore black pants, green T-shirts, and their heads were wrapped with some black cloth. Later I found out that they arrived in a van, but they parked it on the main road. They smashed the lights bulbs in the room and dragged him away. They told him “Come,” in Tamil. He cried, “Mother!” but we couldn’t help him.

— Family member describing the abduction of Junith Rex Simsan on the night of January 22, 2007, following an army search of the house earlier that same day. At this writing, despite repeated inquiries by his family, his whereabouts remain unknown, his fate uncertain.

For instance, take the missing list. Some have gone on their honeymoon without the knowledge of their household is considered missing. Parents have lodged complaints that their children have disappeared but in fact, we have found, they have gone abroad.… These disappearance lists are all figures. One needs to deeply probe into each and every disappearance. I do not say we have no incidents of disappearances and human rights violations, but I must categorically state that the government is not involved at all.

— Sri Lankan President Mahinda Rajapaksa, in an interview to Asian Tribune, October 4, 2007.

The resumption of major military operations between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE) in mid-2006 has brought the return of a haunting phenomenon from the country’s past—the widespread abduction and “disappearance” of young men by the parties to the conflict. With the de facto breakdown of the 2002 Norway-brokered ceasefire between the parties, and its formal dissolution in January 2008, it is likely armed conflict will intensify in the coming year. Unless the Sri Lankan government takes far more decisive action to end the practice, uncover the fate of persons unaccounted for, and prosecute those responsible, then 2008 could see another surge in “disappearances.”

Hundreds of enforced disappearances committed since 2006 have already placed Sri Lanka among the countries with the highest number of new cases in the world. The victims are primarily young ethnic Tamil men who “disappear”—often after being picked up by government security forces in the country’s embattled north and east, but also in the capital Colombo. Some may be members or supporters of the LTTE, but this does not justify their detention in secret or without due process. Most are feared dead.

In the face of this crisis, the government of Sri Lanka has demonstrated an utter lack of resolve to investigate and prosecute those responsible. Families interviewed by Human Rights Watch all talked about their failed efforts to get the Sri Lankan authorities to act on the cases of their “disappeared” or abducted relatives.

The cost of this failure is high. It is not only measured in lives brutalized and lost, but in the anguish suffered by the survivors—the spouses, parents, and children who may never learn the fate of their “disappeared” loved one. And it is felt in the fear and uncertainty that remains in the communities where such horrific, unpunished crimes take place.

This report provides extensive case material and data about enforced disappearances and abductions since mid-2006. It details the Sri Lankan government’s response, which to date has been grossly inadequate. The government shows every sign of repeating the failures of past administrations, making lots of noise—including launching a spate of new mechanisms to investigate “disappearances”—but conducting little actual fact-finding and virtually no prosecution of perpetrators. The report concludes with specific recommendations on how authorities and concerned international actors can respond more effectively. The appendix to this report contains a detailed description of 99 cases documented by Human Rights Watch. A list of 498 additional cases documented by Sri Lankan human rights groups is available at: http://hrw.org/reports/2008/srilanka0308/srilanka0308cases.pdf and (more readable) https://www.hrw.org/report/2008/03/05/recurring-nightmare/state-responsibility-disappearances-and-abductions-sri-lanka

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Under international law, an enforced disappearance occurs when state authorities detain a person and then refuse to acknowledge the deprivation of liberty or the person’s whereabouts, placing the person outside the protection of the law.

In Sri Lanka, “disappearances” have for too long accompanied armed conflict. Government security forces are believed to have been responsible for tens of thousands of “disappearances” during the short-lived but extremely violent insurgency from the left-wing Sinhalese nationalist Janatha Vimukthi Peramuna (JVP) from 1987 to 1990, and the ongoing two-decades-long civil war between the government and the Tamil-nationalist LTTE.

Enforced disappearances have again become a salient feature of the conflict. Figures released by various governmental and nongovernmental sources suggest that more than 1,500 people were reported missing from December 2005 through December 2007. Some are known to have been killed, and others have surfaced in detention or otherwise have been found, but the majority remain unaccounted for. Evidence suggests that most have been “disappeared” or abducted. The national Human Rights Commission (HRC) of Sri Lanka does not publicize its data on “disappearances,” but Human Rights Watch learned that about 1,000 cases were reported to the HRC in 2006, and over 300 cases in the first four months of 2007 alone.

“Disappearances” have primarily occurred in the conflict areas in the country’s north and east—namely the districts of Jaffna, Mannar, Batticaloa, Ampara, and Vavuniya. A large number of cases have also been reported in Colombo.

Who Is Responsible?

In the great majority of cases documented by Human Rights Watch and Sri Lankan groups, evidence indicates the involvement of government security forces—army, navy, or police. The Sri Lankan military, empowered by the country’s counterterrorism laws, has long relied on extrajudicial means, such as “disappearances” and summary executions—in its operations against Tamil militants and JVP insurgents.

In a number of cases documented by Human Rights Watch, family members of the “disappeared” knew exactly which military units had detained their relatives, which camps they were taken to, and sometimes even the license plate numbers of the military vehicles that took them away.

In other cases, groups of about a dozen armed men took victims from their homes, located near army checkpoints, sentry posts, or other military positions. While eyewitnesses could not always identify the perpetrators beyond doubt, they suspected the military’s involvement, as it seemed inconceivable that large groups of armed men could move around freely during curfew hours and get through checkpoints without the military’s knowledge.

Relatives frequently described uniformed policemen, especially members of the Criminal Investigation Department (CID), taking their relatives into custody before they “disappeared.” The police claimed that these individuals were needed for questioning, yet did not say where they were being taken and did not produce the required “arrest receipt.” After these arrests, the families did not manage to obtain any information on the detainees’ fate or whereabouts.

The involvement of the security forces in “disappearances” is facilitated by Sri Lanka’s emergency laws, which grant sweeping powers to the army along with broad immunity from prosecution. Several provisions of the two emergency regulations currently in force create a legal framework conducive to “disappearances.” People can be arrested without a warrant and detained indefinitely on vaguely defined charges; there is no requirement to publish a list of authorized places of detention; and security forces can dispose of dead bodies without public notification and without disclosing the results of the post-mortem examination, thus preventing proper investigations into custodial deaths.

Also implicated in abductions and “disappearances” are pro-government Tamil armed groups acting either independently or in conjunction with the security forces. Relatives of the “disappeared” have often pointed to the Karuna group, which broke away from the LTTE in March 2004 and operates primarily in the east and in Colombo. In Jaffna, eyewitnesses to several abductions have implicated members of the Eelam People’s Democratic Party (EPDP), a Tamil political party that has long been targeted by the LTTE.

Both groups cooperate closely with Sri Lankan security forces. The military and police frequently use native Tamil speakers, often alleged to be Karuna group or EPDP members, to identify and at times apprehend suspected LTTE supporters. In several cases reported to Human Rights Watch, families said that they were first visited and questioned by the military, and then, usually several hours later, a group of Tamil-speaking armed men came to their house and took their relatives away. On other occasions, the Karuna group and EPDP seemed to be acting on their own—settling scores with the LTTE or abducting persons for ransom—with security forces turning a blind eye.

The LTTE has been implicated in abductions in conflict areas under the government’s control, though the numbers reported to human rights groups and the Human Rights Commission are comparatively low. This is not cause for complacency about LTTE practices which, as Human Rights Watch and others have documented elsewhere, include bombings targeting civilians, massacres, torture, political assassinations, systematic repression of basic civil and political rights in LTTE-controlled areas, and other serious abuses. In part, the LTTE abduction numbers are low because it is not the LTTE’s primary tactic; the LTTE prefers to openly execute opponents, perhaps to ensure a deterrent effect on the population. LTTE abductions may also be under-reported because the family members of the victims and eyewitnesses are often reluctant to report the abuses, fearing LTTE retribution.

Who Is Being Targeted?

No matter who is responsible for the “disappearances,” the vast majority of the victims are ethnic Tamils, although Muslims and Sinhalese have also been targeted. The security forces appear to target individuals primarily because of their alleged membership in or affiliation with the LTTE. Young Tamil men are among the most frequent targets, including a significant number of high school and university students. In other cases, the “disappearances” of clergy, educators, humanitarian aid workers, and journalists not only remove these persons from the civil sphere but act as a warning to others to avoid such activities.

In the north and east, many arrests leading to “disappearances” have occurred during or after military cordon-and-search operations following an LTTE attack. During such operations, the military either has detained people or seized their documents and requested that they report to the army camp or another location to collect them. In both scenarios, some of these people have never returned, and the relatives’ efforts to obtain any information on their whereabouts from the military have proved futile.

Particularly in Jaffna, individuals often have been “disappeared” after being stopped by military personnel at checkpoints, or as a result of targeted raids that sometimes followed claymore mine attacks or similar security incidents. In several cases in Jaffna, family members believe that EPDP cadres participated in the raids—judging by the perpetrators’ native Tamil speech, appearance, and cars leaving in the direction of EPDP camps.

In the east, Human Rights Watch received credible reports from eyewitnesses and humanitarian aid workers of “disappearances” that took place when thousands of people fled LTTE areas during fighting in late 2006 and early 2007. The army and the Karuna group reportedly screened displaced persons entering government-controlled territory to identify suspected LTTE members. In a number of cases, young Tamil men detained as a result of such screenings then “disappeared.”

Particularly in Colombo, and in the eastern districts of Batticaloa, Trincomalee, and Ampara, the lines between politically motivated “disappearances” and abductions for ransom have blurred since late 2006, with different groups taking advantage of the climate of impunity to engage in abductions as a way of extorting funds. While criminal gangs are likely behind some of the abductions, there is considerable evidence that the Karuna group and EPDP have taken up the practice to fund their forces, while the police look the other way.

Human Rights Watch has previously reported on abductions by the Karuna group in the east for the purpose of forced recruitment, including of boys. In many such cases, while the families knew that their husbands or sons were taken away to be used as soldiers, they subsequently received no information on their fate or whereabouts.

Unpunished Crimes

Enforced disappearances are a continuing offense—meaning the crime continues to be committed until the whereabouts or fate of the victim becomes known. The continuing nature of the crime takes a particularly heavy toll, with family members left wondering for months or years or forever whether their loved one is alive or dead. Some of the “disappeared” reappear as corpses showing signs of execution or torture, or turn up alive in detention in police custody or army camps, or simply turn out never to have been disappeared after all. But the great majority never turn up again and are presumed dead, victims of extrajudicial execution or other death in custody.

A critical factor contributing to continuing “disappearances” in Sri Lanka is the systemic impunity enjoyed by members of the security forces and pro-government armed groups for abuses they commit.

Police still do not investigate most of the cases and rarely follow up with families on the progress of cases, claiming they lack sufficient information to identify perpetrators and locate victims. As detailed in this report, however, family members say that even when they provide details to the police that should at least give a start to an investigation—such as the license plate numbers of the vehicles allegedly used in the abductions and the names of people or military units the family believes were involved—police do not follow through.

Figures on accountability released by the government show how little has been done to bring perpetrators to justice. A document provided to Human Rights Watch by the Sri Lankan government in October 2007 mentions only two pending cases against army personnel for unspecified human rights violations committed in 2005-2006, and refers to a recent indictment served on an unspecified number of army personnel for the killing of five students in Vavuniya in 2007. None of the indictments for abductions and “wrongful confinement” mentioned in the document appear to be for abuses committed since mid-2006.

The only known arrests for recent abductions were of former Air Force Squadron Leader Nishantha Gajanayake and another two policemen and an air force sergeant in June 2007. Although Sri Lankan authorities widely publicized these arrests as proof of their resolute action against the abductors and promised to promptly bring the perpetrators to justice, in early February 2008 the suspects were released; it is unclear whether charges against them were dropped.

The Government’s Response

Instead of making a diligent effort to investigate and prosecute enforced disappearances, the government of President Mahinda Rajapaksa continues to downplay the scope of the problem. Many official statements suggest there is no “disappearance” crisis at all or, if there is one, the sole perpetrators are LTTE fighters and common criminals. While the government has set up various mechanisms to address abductions and “disappearances,” all have lacked the independence, power, resources, and capacity necessary to conduct effective investigations.

Sri Lanka has a long history of setting up mechanisms to address “disappearances” but not following through. Four official commissions of inquiry set up by then President Chandrika Kumaratunga in the 1990s established that more than 20,000 people “disappeared” during armed conflicts in the 1980s and 1990s. Human rights groups believe that the actual figure may be two to three times higher. These commissions identified suspected perpetrators in more than 2,000 cases, but few have ever been prosecuted, and only a handful of low-ranking officers were convicted. Nor have successive governments meaningfully implemented the commissions’ recommendations for legal and institutional reforms aimed at preventing “disappearances” in the future.

The Rajapaksa government’s response to the surge in “disappearances” starting in mid-2006 appears to be following this pattern. First, the independence of existing government bodies, the Human Rights Commission and the National Police Commission, has been significantly undermined by decisions by the president to bypass constitutional requirements and directly appoint commissioners to these bodies.

Despite the hundreds of alleged “disappearances” reported over the last two years to the Human Rights Commission, it has issued no public reports on the matter, has refused to provide statistics on the complaints it has received, and has tried to downplay the scale of the problem. The monitoring and investigative authority of the Human Rights Commission has also been effectively negated by the obstructive attitude of the security forces and lack of support from the government. As a sign of the HRC’s failings, in December 2007 the international body that regulates national human rights commissions downgraded the HRC’s status to “observer” because of government encroachment on its independence.

Second, while the government has created at least nine other special bodies to address “disappearances” and other human rights violations—all of them described in the report—as yet none of them have yielded concrete results.

Aside from periodic announcements on their establishment, the government rarely has provided any information regarding the mandate of such bodies, or the progress made in the investigations. The government also has not explained whether it continues to create new bodies because of the inability of previously established mechanisms to deal with the problem, or whether it is simultaneously correcting flaws in existing mechanisms.

Many observers believe that most of these bodies have been established to give the impression the government is taking seriously reports of widespread “disappearances” by security forces even as officials dither in initiating investigations into the cases. The government’s continuing dismal record in prosecuting perpetrators lends credence to such beliefs.

The lack of progress in investigations and the failure to halt the abuses is hardly surprising given that, at the highest levels, the Sri Lankan government continues to deny any new “disappearance” crisis or that its security forces are responsible for any significant portion of the violations. Typical in this respect are claims made by Judge Mahanama Tillekeratne, who stated that the abductions were “the result of personal grudges,” and that the majority of the missing persons have returned, neither of which claim is substantiated by the evidence.

President Rajapaksa, government ministers, and the government’s Secretariat for Coordinating the Peace Process (SCOPP) also have repeatedly dismissed reports of widespread “disappearances” as LTTE propaganda aimed at smearing the state’s image. They have claimed that most of the missing individuals have returned, left the country, went into hiding to escape criminal charges, or simply left home and failed to inform their families of their whereabouts—without providing facts to support these contentions.

These claims contradict statements made by some Sri Lankan law enforcement officials, such as the inspector general of the police, and information, albeit limited, that has been released by the governmental commissions, as well as facts and figures publicized by the media and NGOs. Such claims also invite the obvious question of why the government has felt the need to establish so many different mechanisms to look into an allegedly non-existent problem. High-level attempts to dismiss the problem of “disappearances” send a signal to security forces that the government does not take the allegations of their involvement in human rights abuses seriously.

International Response

Various United Nations mechanisms and some of Sri Lanka’s key international partners have raised concerns about the high number of enforced disappearances since mid-2006. Senior UN officials visiting Sri Lanka such as the High Commissioner for Human Rights, the Special Rapporteur on extrajudicial, summary or arbitrary executions, and the Special Advisor on Children and Armed Conflict, have all noted the alarming prevalence of impunity and the failure of law enforcement bodies and national human rights mechanisms to establish accountability. Foreign governments such as the United States and United Kingdom have also spoken out.

Sri Lanka’s response to the growing international criticism has taken two forms. The government has intensively lobbied international organizations and bilateral partners, emphasizing improvements in the human rights situation and its willingness to cooperate with UN officials and human rights specialists. At the same time it has fiercely attacked its critics, including the very same UN representatives, accusing them of being, at best, ignorant of the situation and, at worst, LTTE sympathizers.

The continued refusal of the Sri Lankan government to acknowledge and adequately address the wide range of human rights violations has led to growing national and international support for the establishment of a UN human rights monitoring mission to investigate and report on abuses by government forces and the LTTE throughout the country.

The European Union and more recently the US government have joined the calls of domestic and international NGOs for establishing an international monitoring mission under the auspices of the Office of the High Commissioner for Human Rights. During her October 2007 visit to Sri Lanka, UN High Commissioner for Human Rights Louise Arbour expressed the willingness of her office to work with the Sri Lankan government toward establishing such a presence.

The Sri Lankan government has thus far rejected the proposals for any international monitoring mechanism. This response belies the government’s claims that it is taking the measures necessary to protect the rights of all its citizens.

Key Recommendations

  • The Sri Lankan government should publicly acknowledge the scope of “disappearances” in the country and the continuing role of security forces in committing such abuses.

The Sri Lankan government will not make meaningful progress in ending “disappearances” until it takes the problem seriously and is seen to be taking it seriously. However many new mechanisms the government creates, their efforts cannot be expected to succeed when senior officials deny there is a serious problem. An essential starting point is unambiguous acknowledgment of the problem, and of the role of security forces and pro-government, non-state armed groups in perpetuating the practice.

  • The Sri Lankan government should reform detention procedures to ensure transparency and compliance with international due process standards.

In order to stop the spree of new “disappearances,” the government should ensure that all persons taken into custody are held in recognized places of detention, and each facility maintains detailed detention records. Detained individuals must be allowed contact with family and unhindered access to legal counsel; they should promptly be brought before a judge and informed of the reasons for arrest and any charges against them.

  • The Sri Lankan government should vigorously investigate and prosecute perpetrators of “disappearances.”

Lack of accountability for perpetrators is one of the key factors contributing to the crisis of “disappearances.” The authorities must vigorously investigate all cases of enforced disappearances and arbitrary arrests, including those documented in this report—until in each case the fate or whereabouts of the person is clearly and publicly established. Those responsible for “disappearances” and abductions, be it members of government security forces or members of non-state armed groups, must be disciplined or prosecuted as appropriate.

  • The government and the LTTE should cooperate with the UN Office of the High Commissioner for Human Rights to establish and deploy an international monitoring team to report on violations of international human rights and humanitarian law by all parties to the conflict.

Deployment of an experienced international monitoring team would save lives, curtail abuses, and promote accountability. Here, the burden rests not only with the Sri Lankan government and LTTE, but also with concerned international actors. The latter should make it clear that they view the Sri Lankan government’s position on deployment of such a team as an important test of its commitment to human rights and its willingness to take real, rather than feigned, measures to address continuing problems. Sri Lanka’s international partners, in particular India and Japan, should make further military and other non-humanitarian assistance to Sri Lanka contingent on government efforts to halt the practice of “disappearances” and to end impunity, including its acceptance of an international monitoring team.

International monitoring has proven particularly effective in dealing with the problem of large-scale “disappearances.” With sufficient mandate and resources, the monitoring mission could achieve what the government and various national mechanisms have failed to do—establish the location of the detainees through unimpeded visits to the detention facilities; request information regarding specific cases from all sides to the conflict; assist national law enforcement agencies and human rights mechanisms in investigating the cases and communicating with the families; and maintain credible records of reported cases.

Detailed recommendations to the Sri Lankan government, the LTTE, and the international community are found in the closing chapter of this report.

Note on Methodology

This report is based on field research carried out in Sri Lanka in February, March, and June 2007, and follow-up research through January 2008. Human Rights Watch conducted over 100 interviews with families of the “disappeared,” as well as dozens of interviews with human rights activists, lawyers, and international agencies working in Sri Lanka. Human Rights Watch visited Colombo and its environs, and the districts of Batticaloa and Jaffna.

Following the visits, Human Rights Watch communicated closely with local NGOs and international organizations working in Sri Lanka to update the information and obtain new data.

Human Rights Watch has raised its concerns in various meetings with the president of Sri Lanka, the foreign minister, and the minister for disaster management and human rights, among other Sri Lankan officials. Human Rights Watch sent inquiries to various Sri Lankan authorities—the Ministry for Disaster Management and Human Rights, the Inspectorate General of the Police, the Defense Ministry, the Human Rights Commission, and the Presidential Commission on Abductions, Disappearances, and Killings—requesting information related to the issues raised in this report. Human Rights Watch also sent an inquiry to Eelam People’s Democratic Party (EPDP).

Human Rights Watch received responses from the Human Rights Commission of Sri Lanka and the Sri Lankan police. The EPDP also responded to the inquiry. Their responses are incorporated in the relevant sections of this report. Other officials mentioned above did not respond to Human Rights Watch inquiries. Human Rights Watch letters of inquiry and responses we have received are appended to this report (Appendix II).

Appendix I of this report contains detailed descriptions of 99 cases of “disappearances” and abductions documented by Human Rights Watch. A list of 498 additional cases reported to Sri Lankan human rights groups is available at: http://hrw.org/reports/2008/srilanka0308/srilanka0308cases.pdf.

While all efforts were made to ensure that information in Appendix I is up to date, given the challenge of obtaining information from some parts of Sri Lanka, especially the north, it is possible that new developments may have occurred in some of the cases before the report went to print.

Human Rights Watch also notes that in some of the documented cases there were no eyewitnesses to the abduction or arrest, and such cases may not technically qualify as “disappearances.” Most such cases were excluded from this publication; where we have included such cases it is because there is other evidence, set forth during our discussion of the case, suggesting the victim was abducted by a pro-government armed group, the LTTE, or government security forces.

Amnesty: Sri Lanka Must Deliver on its Commitments SET OUT BY HUMAN RIGHTS COUNCIL RESOLUTION 30/1

Set Out by Human Rights Council Resolution 30/1

by Amnesty International, London, Index number: IOR 40/6975/2017

WRITTEN STATEMENT
UN Human Rights Council
Thirty-sixth session
11 – 29 September 2017

Human Rights Council resolution 30/1 sets out concrete steps to ensuring truth, justice, reparation and non-recurrence for human rights violations and abuses. Council resolution 34/1 requested the Government “to implement fully the measures identified by the Council in its resolution 30/1 that are outstanding.” This written statement provides an assessment of Sri Lanka’s progress in delivering on its human rights obligations, and implementation of resolution 30/1.

Amnesty SL must deliver on its commitments Aug 2017 IOR4069752017ENGLISH

Recommendations

To give full effect to its international human rights obligations and commitments, including those set out in resolution 30/1, the government of Sri Lanka must take the following steps:

  • Fulfil the President’s pledge to publish a list of all those who surrendered or have been detained;
  • Repeal the PTA and ensure that any new legislation to replace it is in accordance with international human rights law and contemporary international best practices;
  • Investigate all alleged attacks by individuals and groups on journalists and civil society, and members of religious minority groups, as well as places of worship, holding perpetrators to account, and take steps to prevent such attacks in the future;
  • Incorporate crimes under international law (including enforced disappearance, torture, crimes against humanity and war crimes,) and effective principles of criminal responsibility into Sri Lankan law.
  • Establish an official roadmap for the creation and efficient functioning of truth, justice, and reparation mechanisms, a national outreach program and a monitoring body comprised of affected families, human rights and civil society groups, and the international community;
  • Publish a time-bound action plan for the full implementation of resolution 30/1.

To support continued progress, the Human Rights Council and its member and observer States should:

  • Call on the Sri Lankan authorities to ensure they make progress in implementing the commitments reflected in Resolution 30/1, in particular to establish the roadmap recommended by the CTF for the establishment and efficient functioning of truth, justice, and reparation mechanisms, a national outreach program and a monitoring body.
  • Provide technical assistance and financial support for justice, truth and reparation mechanisms that meet international standards; legal reform and other steps to ensure non-recurrence.
  • Assist and support Sri Lanka to develop and implement rigorous human rights vetting of law enforcement agencies and the military, and ensure the equally rigorous vetting of all Sri Lankan personnel provided to UN peacekeeping operations, training or exchange programs.  Provide cooperation and mutual legal assistance to support investigations into and prosecutions of crimes under international law or other serious human rights violations, subject to fair trial safeguards and precluding the imposition of the death penalty.

Amnesty: “Disappearances & Political Killings: Human Rights Crisis of the 1990s’

A MANUAL FOR ACTION

by Amnesty International, London, September, 1993

Amnesty 1993 disappearance murder as techniques of counterinsurgency asa370131993en

Sri Lanka: “Disappearance” and murder as techniques of counter-insurgency
EXTERNAL (for general distribution)
AI Index: ASA 37/13/93 Distr: SC/CO/CC
No. of words: 4700 ————————-

Amnesty International
International Secretariat
1 Easton Street
London WC1X 8DJ
United Kingdom

Chapter C-2
Sri Lanka: “Disappearance” and murder as techniques of counter-insurgency

Table of Contents  

The emergence of killings and “disappearances” 1
The destruction of domestic safeguards and remedies 3
Violence by the armed opposition and human rights 5
The international response 6
Notes 8

Chapter C-2
Sri Lanka: “Disappearance” and murder as techniques of counter-insurgency

“Disappearances” and political killings had reached tragic proportions in Sri Lanka by the late 1980s, after several years of increasing numbers of people falling victim to these gross violations of human rights. In the northeastern part of the country, government forces confronting an armed Tamil separatist movement evolved tactics of “disappearance” and political killings to sow terror and avoid accountability. In the south, where the security forces sought to suppress an armed insurgency within the majority Sinhalese community, tens of thousands of people are believed to have been murdered under the cover of “disappearance” between 1987 and 1990.

Resort by government security forces to widespread extrajudicial executions and “disappearances” in confronting armed opposition is not new in Sri Lanka. But in recent years such violations escalated almost beyond measure, and armed opposition has intensified. Over the years, a progression is evident from the blatant commission of these violations by uniformed personnel to more sophisticated, systematic methods that provided a means of covering-up far more widespread abuse of human rights.

Sri Lanka has retained a system of parliamentary democracy throughout the troubles of the 1980s and 1990s. Its normal legal system contains safeguards which should prevent “disappearances” and extrajudicial executions, but these provisions have been undermined by the fact that the country has been under an almost continuous state of emergency since May 1983. Official emergency measures override the safeguards contained in the normal law and have granted sweeping powers to the security forces. In addition, there has been blatant intimidation of lawyers, relatives and others attempting to take remedial action.

The massive spate of “disappearances” and extrajudicial executions in the south in the late 1980s were illegal and clandestine elements of a counter-insurgency campaign which many in government appear to believe to have been necessary and effective. In 1990 the violence by the armed opposition in the south subsided. The insurgent leaders, together with many thousands of other people, had been wiped out. In the northeast, however, the campaign against Tamil separatists has been markedly unsuccessful. Far from the number of armed separatists falling over the years, the government has lost control of large areas entirely and the main separatist movement, the Liberation Tigers of Tamil Eelam (LTTE), has grown from a small group of armed men in the late 1970s to a fighting force of many thousands of men and women.

The emergence of killings and “disappearances”

In northeastern Sri Lanka, where most people belong to the Tamil minority, Tamil separatists have fought since the late 1970s for secession from the Sinhalese dominated state. Conflict escalated in mid-1983 after Tamil separatists in the north ambushed and killed 13 government soldiers. There was a wave of retaliatory violence against Tamil people living in the south, and in the north security forces were reported to be killing unarmed Tamil civilians at random, apparently in retaliation for the deaths of their colleagues. Over the next years, further reprisal killings were committed by army and police officers after members of their own forces had been killed by Tamil militants. The reprisal killings were committed openly by men in uniform; “disappearances” were almost unknown at first.

One response of the government forces to the activities of armed Tamil groups was to arrest many young Tamil men. Some were released within a few weeks, and although relatives were not normally informed where the arrested person was being held, many families were able to establish their arrested relatives’ whereabouts. However, by late 1984 a new tactic of the security forces was evident: in an increasing number of cases where a person had been arrested by the security forces in front of witnesses, those forces denied holding the prisoner and their relatives were never able to establish their whereabouts. Whole groups of young men, who had been arrested together, simply “disappeared”.

This new tactic of “disappearance” developed in Sri Lanka soon after the creation of a new police commando unit, the Special Task Force (STF). Members of this unit, as well as members of the army, were frequently seen taking into custody young men who then “disappeared”. Testimony after testimony by witnesses described how the “disappeared” had been rounded up in groups by the army or the STF and taken away. Less frequently police, air force and navy personnel were described as the arresting authority.

Testimonies from released prisoners described the torture and killing of many prisoners in army or STF detention camps, and the secret disposal of bodies, often by burning. “Disappearance” appeared to be used for two purposes: it facilitated torture without accountability, and it concealed the killing of prisoners.

In the northeast the number who have “disappeared” or been extrajudicially executed to date runs into the thousands. From 1984 to mid-1987, Amnesty International recorded over 680 “disappearances” in the northeast. From mid-1987 to March 1990 the Indian Peace Keeping Force (IPKF) was responsible for the security of the northeast under the terms of the Indo-Sri Lanka Accord. During this period Amnesty International recorded 43 “disappearances” there for which the IPKF were believed responsible. After armed conflict resumed between government forces and the LTTE in the northeast in June 1990, the numbers reported to have “disappeared” or been extrajudicially executed reached thousands within months.

After the IPKF took control of the northeast in mid-1987, the Sri Lanka army and the STF were redeployed in the south, where the government was increasingly concerned about mobilization by the Janatha Vimukthi Peramuna (JVP), People’s Liberation Front, a Sinhalese militant party. The accord between the governments of India and Sri Lanka – which provided for some devolution of power to provincial councils and brought the IPKF to the northeast – provided new momentum for the JVP, which had for years expressed a fear of Indian imperialism. The JVP began to target for assassination members of the ruling party, members of leftist parties which had supported the accord, members of the security forces and others, including relatives of targeted individuals. As their campaign of terror gradually mounted, they were able to command widespread strikes and stoppages, enforced by threats to kill those who refused to obey the strike call.

It was in this context that tactics of counter-terror, mirroring those of the JVP, were increasingly used by the security forces and other groups aligned with the government, and that there was such a massive rise in the numbers of extrajudicial executions and “disappearances”. As the number of reported “disappearances” soared, bodies – mutilated or burned beyond recognition – began to be dumped in public places, by roadsides, in cemeteries or in rivers, or burned on pyres of rubber tyres. Some of these bodies may have been those of the “disappeared”, but their identities usually could not be established.

Plainclothes pro-government death squads appeared under various names, echoing the JVP in issuing death threats to individuals and putting up threatening posters in public places. Like the JVP, they sometimes placed posters by dead bodies, claiming responsibility for the deaths of those whose bodies were dumped.

The government consistently claimed these groups were “pro-government vigilantes” over whom they had no control, and some of the killings were attributed to the JVP. But gradually evidence emerged indicating that, in many cases, the perpetrators were police or military personnel operating in civilian dress.

In addition, the government decided to distribute weapons to a range of civilian groups – including home guards, bodyguards for politicians, as well as members of militant groups with no more than a common enemy to link them to the government – to fight at one remove from direct governmental responsibility. The government provided no measures to ensure adequate control over these forces, and it has failed to hold members of these groups accountable for abuses they have committed. Such proxy forces have thus had much the same degree of immunity from prosecution as that enjoyed by the regular forces of the military and police with which they collaborated.

As in the northeast, many of the southern “disappeared” must be presumed to have been killed in custody. However, whereas in the northeast bodies of the victims were rarely found in the period from 1983-1987, in the south unidentifiable bodies, and sometimes severed limbs or heads, were regularly displayed in public as part of the campaign of counter-terror. This pattern of mutilation and display, together with the use of plainclothes squads, was transferred to the east when the military returned there from the south after the resumption of hostilities between the government and the LTTE in June 1990.

A staggering number of people were extrajudicially executed or have “disappeared”. Tens of thousands – just how many tens of thousands is not known – “disappeared” in the south between 1987 and 1990, almost certainly the victims of extrajudicial execution, while others are known victims of extrajudicial execution. This period of violence was the most extreme in Sri Lanka’s 20th-century history to date, and it was in this period that the so-called vigilante groups appeared. Since June 1990, however, when direct conflict resumed between Sri Lanka government forces and the LTTE over 3,000 people are estimated to have “disappeared”, as practices of government forces in the south between 1987 and 1990 were transferred to the east in the initial months of the fighting.

The destruction of domestic safeguards and remedies

Over the years a climate of impunity appeared to develop within the security forces, reinforced by the fact that the government took no action to make security forces personnel accountable for human rights violations. Normal legal safeguards to protect against “disappearances” and extrajudicial executions were eroded by the granting of special powers to the security forces, and many victims and their relatives who attempted to seek redress found themselves intimidated. The government appeared unwilling to prosecute members of the security forces responsible for gross human rights violations, even after an inquiry had been held,i and introduced indemnity legislation.

In the face of armed opposition by Tamil secessionists in the late 1970s the Government of Sri Lanka gave extraordinary powers to the security forces. The Prevention of Terrorism Act (PTA) was introduced in July 1979, initially for a period of three years. It was later amended and incorporated into the normal law of Sri Lanka. In addition, a nationwide state of emergency has been in force since 18 May 1983, apart from nearly six months (January to June 1989) when it was lifted by President Ranasinghe Premadasa following his election as President. During a declared state of emergency, which has to be renewed monthly by parliament, the Emergency (Miscellaneous Provisions and Powers) Regulations are in force. These regulations are issued by the President under the Public Security Ordinance.

Both the PTA and the Emergency Regulations give the security forces wide powers to arrest suspected opponents of the government and detain them incommunicado and without charge or trial for long periods – conditions which provide a ready context for deaths in custody, “disappearance” and torture. Many thousands of people have been detained under these provisions. During some periods, Emergency Regulations have also been issued to permit the security forces to dispose of bodies without post-mortem or inquest, thereby enabling them even more readily to cover up their commission of deliberate and unlawful killings. Even when this provision has not been in force, the regulations have provided a special, secret inquest procedure which could be used to facilitate the cover-up of deliberate killings in custody.

The government’s willingness to condone the actions of the security forces and government officials, even when they have committed gross abuses, was underlined in December 1988 when the Indemnity (Amendment) Act was passed days before a presidential election was to take place. This act gives immunity from prosecution to all members of the security forces, members of the government and government servants involved in enforcing law and order between 1 August 1977 and 16 December 1988 provided that their actions were carried out “in good faith” and in the public interest. The act also indemnifies any other person who can use the defence that he or she acted “in good faith” under the authority of a government official during this period.

The government’s failure to prosecute members of the security forces responsible for human rights violations has contributed to a climate of impunity. Amnesty International does not know of a single case in which a member of the security forces was prosecuted for human rights violations committed in the northeast in the 1980s. In the south after mid-1987, a few cases of torture and extrajudicial execution received widespread publicity and provoked a public outcry; investigations were held and the alleged perpetrators prosecuted, but none of these cases has yet reached a conviction for murder. One of these trials – for the killing of a schoolboy in Teldeniya in June 1989 – was discontinued, and the charges withdrawn, after witnesses failed to appear for the prosecution. Material collected by Amnesty International indicates that they had been murdered or threatened with death if they gave evidence, but no official investigation was held to establish why they failed to appear in court. Only after the international community began to put more pressure on Sri Lanka for its human rights record did the government institute an independent Commission of Inquiry into a massacre by soldiers at Kokkadichcholai in the east in June 1991 – the first inquiry of its kind ever held in Sri Lanka. A military tribunal found the commanding officer guilty of failure to control his troops and illegal disposal of the bodies, and he was dismissed from service. The other 19 soldiers under trial were acquitted. At the time of writing, 23 soldiers had been charged for murdering villagers at Mailanthanai in August 1992, and were being tried by a civilian court. However, the case had been moved to a court some distance from where the killings took place, making it very hard for witnesses to attend.

Victims and their relatives have faced enormous difficulties in seeking redress. No effective legal remedy exists to trace a person who has “disappeared”. Hundreds of relatives have filed habeas corpus petitions in attempts to trace “disappeared” prisoners, but the procedure has proved slow and ineffective. Lawyers and witnesses in these cases began to be murdered or threatened with death in 1989, and access to habeas corpus was effectively closed for many months as lawyers were reluctant to risk taking on such cases.

During the purge of the JVP in the south, the government appeared to become more directly involved in security forces strategies. Some “death squads” were apparently associated with senior members of the ruling party, for example. In the south, the subversive threat came from within the majority community itself: it was close to home and threatened the lives of ruling party politicians and their families. The Tamil separatists, in contrast, did not pose so direct a threat as the JVP to the continuing power of the government and to the lives of ruling party politicians and their families. Similarly, families of members of the security forces came under threat from the JVP. It was in this context that the government and its security council appears to have encouraged counterterrorism – state terror to fight opposition terror – as the way to destroy the JVP.

There were different phases, with “political” as against “military” approaches predominating at different times. Emergency law was already in place to be applied, and extended, in this new situation.

The fact that such unprecedented numbers of people were victims of “disappearance” and extrajudicial execution in the south between 1987 and 1990 carries various implications, both for the domestic response to the tragedy and for the response of international agencies. Local and international human rights organizations have been overwhelmed by the numbers involved: thorough documentation of the full number of individual cases has so far proved impossible, although details have been recorded in thousands of cases. Pressing for accountability also becomes problematic: what kind of investigation is sought? How can the fate of so many individuals be clarified in practice? And from the government’s point of view, the sheer scale of abuse increases the necessity for impunity to be maintained for acts committed in this period, both because such a large proportion of the security apparatus is likely to be implicated and because politicians themselves may be implicated. Indeed, when Amnesty International submitted 32 recommendations for human rights safeguards to the Sri Lankan Government in 1991, the two which the government rejected were both concerned with impunity: the government refused to permit a Presidential Commission of Inquiry into Involuntary Removals to investigate “disappearances” which occurred before 11 January 1991, and it refused to repeal the Indemnity Act.ii

Violence by the armed opposition and human rights

The context of armed opposition has been crucial in both the northeast and the south. It has provided the government with a rhetorical claim of justification for “excesses in defence of democracy”; it has allowed confusion to be sown over issues of responsibility, particularly within the international community and the media; it has posed problems for local and international human rights organizations, who have been accused of supporting terrorism and of bias when they seek to uphold governmental responsibility under international human rights law.

Violence by the armed opposition has intensified over the years. In the north in the late 1970s and early 1980s, Tamil militants tended to attack a limited range of state targets, as well as other Tamils whom they considered “traitors” by standing as candidates for, or publicly supporting, the ruling party. More generalized attacks against civilian targets by the militants – bombs at bus stands, for example, or attacks on Sinhalese or Muslim communities – came in later years. As the security forces reacted with repressive measures against the Tamil population in general in certain areas, their acts seemed to create more and more of the militants they were ostensibly intended to suppress.

The LTTE were not the only group of armed Tamil separatists at this time: during the 1980s several militant groups formed, with splits and factions developing, and alliances between them changing. Although they were often thought of collectively from the outside as “Tamil Tigers” or Tamil separatists, hostility between certain groups was intense at times. Abuses committed by Tamil militants within the Tamil community – torture of prisoners from rival militant groups, for example, or as disciplinary action within a group – remained closed to public view.

Today, now that one group – the LTTE – has excluded almost all expression of dissent within the area it controls, and has been publicly exposed as guilty of grave abuses of human rights, a small group of concerned Tamils have asked whether this situation might have been prevented if the international human rights community had begun to address abuse by the LTTE earlier. Local human rights workers who had carefully documented “disappearances” and extrajudicial executions by government forces remained silent about abuse within the Tamil community, perhaps sometimes because it would have been too dangerous for them to speak out, but also, according to some, because of fear of tarnishing their community’s international image and cause.

In the south, too, the repressive tactics of the security forces may have encouraged the growth of armed militancy for a time. Certainly the JVP, like the LTTE, campaigned on human rights issues, citing the brutality of government forces in support of its anti-governmental stance.

There are several significant differences between the LTTE and the JVP which have implications both for the nature of the government’s response to them, as already described, and for human rights organizations which seek to address their abuses. The LTTE is a secessionist movement: it does not seek to overthrow the Colombo government, but to create a separate state structure within a defined area of the country. The JVP, on the other hand, was “the enemy within”, originating inside the majority Sinhalese population and seeking to overthrow the government and take power itself. Unlike the LTTE, the JVP did not have strong international connections. With many thousands of Tamils living abroad, the LTTE has “front” organizations – promoting Tamil culture, lobbying on human rights issues and other themes, as well as providing funds – in several parts of the world. The JVP had no equivalent to this international Tamil lobby. It appears to have been a remarkably self-contained, local organization, armed largely with weaponry it seized itself.

Although it brought the country’s economy to a standstill at times, it did not reach a point where it sought international recognition for its cause or for its legitimacy.

The international response

Despite the evident intensification of human rights violations in Sri Lanka during the 1980s, the international community was slow to take action on the matter. To highlight the emergence of a new pattern of abuse, in September 1986 Amnesty International launched an international campaign calling attention to the “disappearance” of Tamil youths in the northeast. In March 1987 the United Nations Commission on Human Rights adopted a weak resolution on Sri Lanka calling on all parties to renounce violence, observe humanitarian norms and reach a negotiated settlement, shortly before the situation in the northeast was dramatically changed by the arrival of the IPKF.

No effective preventive action was taken internationally while tens of thousands of youths in southern Sri Lanka were being killed or “disappearing” in 1989 and 1990. Most concerned foreign ministries appeared to prefer quiet diplomacy to public condemnation in this period, and motions on Sri Lanka failed to gain adequate support in UN bodies. But after the events in the south, at least, when the massive and unprecedented scale of gross governmental abuse became clear and some of the webs of official misinformation had been swept aside, the European Parliament (the parliamentary body of the European Community), Western aid donor countries and others were stirred to public denunciation. Western donor countries threatened to withdraw aid on human rights grounds, and this threat in particular has prompted the government to institute various inquiries and procedures concerned with human rights protection. However, the period of greatest abuse remains excluded from the scope of any inquiry so far, and most of the trials and inquiries that are in progress (some after several years) have not reached final conclusions.

During 1989 and 1990, and culminating in another international campaign in September 1990, Amnesty International constantly sought to publicize the intensified human rights violations in the south. For the first time in Sri Lanka, thousands of “disappearances” and extrajudicial executions were being committed by people in civilian dress whom the government falsely claimed were either “vigilantes” outside their control or members of the JVP. As noted, these so-called vigilantes imitated methods of the JVP and aimed to create a climate of terror to counter the terror the JVP.

Amnesty International’s statements and appeals in this period provoked an angry, confrontational response from the government. The Minister of State for Defence accused Amnesty International of being a “terrorist organization”, biased against governments and advancing the cause of terrorists. As time went by, confrontation, denial and a refusal to enter into any dialogue gradually gave way to a more conciliatory position as international opinion mobilised around human rights matters. Particularly because of its linkage to aid, the Sri Lankan authorities recognized that they had to address human rights in some visible way.

This recognition, however, has not been made without continued expressions of grievance. Within the country the debate on human rights remains highly politicized. The linkage of human rights with aid has provoked complaint in Sri Lanka, as elsewhere, of neo-colonialism and interference in the country’s internal affairs, and the former President Premadasa repeatedly stated his commitment to “poverty alleviation” over and above civil and political rights.

Since the period of greatest abuse in the south, the problem remains of pressing for accountability after the event. The observance of international human rights law depends upon governments upholding human rights standards and providing remedies when violations have been committed. The difficulties of calling to account a government which appears to believe that its actions were justified and necessary are obvious. So far there has been no movement towards redress for the past – for victims of violations in the northeast over the past decade and in the south more recently. Continuing vigilance and action by the international community may be necessary to ensure that steps the government takes with regard to human rights protection for the future are effectively implemented, and are not permitted to exist merely on paper.

The government’s response to international pressure has included a signal to the security forces that restraint is required, and a new acknowledgment that gross violations had indeed been committed by government forces. First, in late 1990, the International Committee of the Red Cross was granted access to the country. Then invitations were issued to the UN Working Group on Enforced or Involuntary Disappearances and to the UN Special Rapporteur on summary or arbitrary executionsiii. In March 1991 Amnesty International was able to visit Sri Lanka for the first time since 1982, and in December 1991 the government announced its acceptance of 30 out of 32 recommendations for human rights protection offered by the organization. By November 1992, however, when Amnesty International visited again to assess the implementation of the recommendations, very few of them had been implemented, and arrests followed by “disappearance” continued to be reported from the east, in particular, although the overall level of “disappearances” was reduced considerably from the previous yeariv .

Despite these developments there remains a need for caution in assessing the effect of international pressure on the human rights situation. The situation has certainly improved – but it must be remembered that an appalling record set the baseline for improvement, and the numbers of extrajudicial executions and “disappearances” which continued to be reported in 1992 would be considered high in many other countries. In such situations, where there is clear sensitivity to international opinion, the risk is that a government will create mechanisms ostensibly designed to protect human rights as a palliative to what it sees as an international public relations problem, without making underlying structural, institutional or policy changes which address the causes of human rights violations. In Sri Lanka, the government still has to demonstrate that it is genuinely committed to human rights protection by ensuring that the safeguards it has said it will introduce are implemented in practice, and by fully acknowledging and providing redress for past abuses.

Notes

i In 1979, for example, there was an isolated incident of killings and “disappearances” days after a state of emergency had been declared in the Jaffna district. The mutilated bodies of two young Tamil men who had been arrested by police the day before were found near a bridge. Three other young men who had also been arrested that day “disappeared”. The government established a Parliamentary Select Committee to investigate. The report, which was only made public four years later, concluded that in at least two of the cases there was evidence that the men had been taken to a police station. The Committee recommended that a special team of investigators be appointed. Instead, the government ordered the police to investigate themselves, and the police found no evidence of the men’s whereabouts. One of the police officers named in the inquest into the death of one of the victims was later promoted. The chairman of the Committee later became Minister of Internal Security. Violations committed during his term of office failed to be investigated.

ii For the recommendations, see Amnesty International, “Sri Lanka – the Northeast; Human rights violations in a context of armed conflict”, AI Index: ASA 37/14/91, September 1991.

iii The Working Group visited Sri Lanka in both 1991 and 1992. The Special Rapporteur has yet to take up his invitation.

iv These findings are documented in Amnesty International, “Sri Lanka; An assessment of the human rights situation”, AI Index: ASA 37/1/93, February 1993.