[*PG115]THE FAÇADE OF ACCOUNTABILITY: DISAPPEARANCES IN SRI LANKA

Wasana Punyasena*

Abstract:  The current ceasefire between the Sri Lankan government and the Liberation Tigers of Tamil Eelam marks a watershed moment for the government to finally implement effective policies to halt the disappearance phenomenon and address issues of reconciliation. Despite the recognition of a range of institutional initiatives to combat and document disappearances, such efforts have been largely ineffective. This Note provides some concrete strategies to help limit the disappearance phenomenon within the Sri Lankan context.

An arrest has the trappings of legality and the rule of law; a kidnapping is at the whim of an individual.1

Introduction

Paramanathan Selvarajah2 still recalls the clothing his son Selvarajah Prabhakaran wore that fatal day in July 1996, when he disappeared after being taken into army custody at the Chemmani checkpoint in northern Sri Lanka:3 a light blue shirt, ash colored pants, and trinkets such as a gold chain, two rings, and a wristwatch.4 Each provides a small visual memory of the son whose fate still remains uncertain. After the revelation of alleged mass graves in the region in 1996, numerous government setbacks slowed the process of their unearth[*PG116]ing.5 Wrestling with the painful memories, Selvarajah pled, “[w]hy are they delaying this identification . . . ? The government is happy our children were killed.”6

In many countries at war, governments forsake international human rights norms under the guise of national security.7 Disappearances have become one such weapon used to suppress opposition.8 The term “disappearance” is a euphemism to disguise the use of extrajudicial detentions and killings by state-sanctioned agents.9 Agents arrest individuals without charge and hold them indefinitely while officials deny knowledge of their detention.10 While in custody, agents torture and kill individuals and secretly dispose of their bodies to destroy evidence.11

[*PG117] Human rights organizations first coined the term “disappeared” (“desaparecido”) in 1966, during secret government crackdowns on political opponents in Guatemala, with systematic documentation of disappearances developing through the mid 1970s.12 Disappearances were unique in that “[p]eople were not killed by officials or at identifiable places, such as police stations, military headquarters, or death camps. They were kidnapped, tortured, and killed in secluded places by people who wore no uniforms.”13 As this form of political brutality became routine elsewhere on the continent, the Latin American media standardized the term “disappearance” to describe the phenomenon.14

Disappearances serve as a double form of torture, in which victims are kept ignorant of their own fates, while family members are deprived of knowing the whereabouts of their detained loved ones.15 Moreover, in the wake of a disappearance, many families suffer from the loss of the household breadwinner, leading to extreme economic hardship and poverty.16 Furthermore, relatives sometimes file habeas corpus cases, but courts frequently dismiss them for lack of evidence or because presiding judges remain loyal to the offending regime.17 Relatives often lack effective tools to pursue justice and financial support from the government or may become victims themselves in their search for the truth.18

Even when governments more answerable to human rights norms replace repressive regimes, full accountability still may not materialize.19 When pressed for thorough investigations into past violations and reparations for victims, many governments have denied re[*PG118]sponsibility to rectify past injustices.20 Ironically, similar to their predecessors, current governments argue that a platform of forgetting and providing amnesty to perpetrators better serves the interests of national unity.21 This tendency to conceal past wounds for the supposed current needs of the state assures that justice is never achieved.22

This Note analyzes disappearances through an in-depth case study of their use throughout the recent history of Sri Lanka. Part I of this Note presents a background on the disappearance phenomenon, as well as an analysis of the international legal protections used to combat this human rights crisis. This section further describes the strengths and weaknesses of these measures and highlights in particular whether they provide effective remedies and enforcement mechanisms. Part II launches into the Sri Lanka case study by providing a brief social and political analysis of the country’s civil and political conflict. Understanding the roots of the divisions and tensions among groups perpetrating and being victimized by violations in the country is vital to comprehending the readiness of those in power to turn to disappearances to subdue people under their control. Part III scrutinizes the various methods the Sri Lankan government has constructed to address disappearances. Part IV concludes with recommendations for improving the governmental methods used in Sri Lanka to combat disappearances and to provide justice to those whose fates remain a mysteryI.Disappearances Unregulated

Regimes can effectively cause tens of thousands of their own citizens to disappear due to the inherent nature of the “disappearance” process.23 The organizational complexity of the practice, the state sponsorship of such abductions and killings, and the weaknesses of international legal norms designed to prevent the phenomenon all contribute to the problem.24

[*PG119]A.  Organizational Complexity and State Sponsorship

There is an innate organizational complexity within the disappearance process.25 A person must be taken prisoner, transported to a detention center, and held there in secret with the awareness of governmental officials.26 Amnesty International specifies the two elements necessary for a disappearance: 1) reasonable grounds exist to infer that an individual has been taken into custody by government authorities or the agents under their control and 2) such agents/authorities deny that the individual is in custody, concealing the person’s whereabouts and fate.27 The inherent hierarchy within the security force structure transfers to the process of abducting victims.28 While some isolated incidents of disappearance occur without organized efforts, more often victims are selected through the command structure of a country’s intelligence service.29

The element of secrecy within such operations neutralizes efforts to seek corrective remedies.30 Concealment of evidence and harassment of remaining family members ensure that the perpetrators are never charged with crimes.31 The government may also formalize the impunity by passing laws to discourage measures of redress.32 To further avoid responsibility, the government may attribute responsibility for killings and disappearances to opposition forces and “death squads” not under governmental control.33

B.  International Legal Protections Against Disappearances,
Extrajudicial Killings, and Political Killings

Disappearances not only violate the national laws where they are perpetrated, but also violate international human rights standards.34 [*PG120]Enforced disappearances violate several fundamental human rights and/or guarantees embodied in the Universal Declaration of Human Rights35 and the International Covenant on Civil and Political Rights (ICCPR).36 Both treaties, while outlining basic rights, also have elements that call for action.37 Those guarantees include the right before the law to life, liberty, and security of the person;38 to humane conditions of detention; and to be secure from torture, arbitrary arrest, or cruel, inhuman, or degrading punishment.39 These rights attach even in a state of national emergency.40 Each right is infringed upon during the course of a disappearance.41

[*PG121] Disappearances also violate the right to family life and certain economic, social, and cultural rights, such as the right to education and an adequate standard of living.42 Particularly in developing countries, the loss of the main economic support within a family may deprive the remaining family members of many rights enumerated in the International Covenant on Economic, Social and Cultural Rights.43 Finally, the Convention on the Rights of the Child is violated when a child is directly or indirectly involved in a disappearance.44

Other international instruments adopted by the United Nations (UN) that protect rights violated through disappearances include the Body of Principals for the Protection of All Persons under Any Form of Detention or Imprisonment, the Code of Conduct for Law Enforcement Officials,45 the Standard Minimum Rules for the Treatment of Prisoners, the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (Principles on Executions),46 and the Declaration on the Protection of All Persons from Enforced Disappearances (Declaration on Disappearances).47 The rules enumerated are applicable to all detainees, including those detained for security reasons, before or after convictions.48

[*PG122] The Declaration on Disappearances, passed by the General Assembly in December 1992, specifies that an enforced disappearance occurs when:

persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups, or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.49

Both the Declaration on Disappearances and the Principles on Executions ask authorities to “conduct impartial investigations into complaints and reports of these abuses, to bring the alleged perpetrators to trial, and to establish specific safeguards for the prevention of these abuses.”50

The entire body of international instruments resolutely forbids the use of disappearances and extrajudicial killings.51 Yet such practices continue in countries throughout the world.52 The inherent weakness of international human rights protections develops from the lack of means to ensure that norms are being upheld.53

[*PG123]C.  Weaknesses in International Protections

Though most countries are parties to many of the aforementioned treaties, the implementation problems develop from the treaties’ weak enforcement mechanisms and the limited resources provided by the UN to ensure compliance.54 While the UN calls on states to incorporate the provisions and instruments into their national legislation and allow for the training of officials in such norms, the organization rarely penalizes noncompliant countries.55

While the UN has created various bodies and mechanisms to ensure compliance with human rights and humanitarian norms, these mechanisms have suffered from weak enforcement.56 One such body, the Commission on Human Rights, established in 1946, has become a highly politicized body with current allegiances divided on North-South lines.57 Many of the resolutions seldom lead to the enhancement of the human rights situation within a condemned country.58

During the 1970s, the Commission created a second mechanism of special rapporteurs for both individual countries and specific issues.59 Rapporteurs submit annual reports that provide recommendations and insist that states comply with their human rights treaty obligations.60 The UN working groups mirror the work of the special rapporteurs.61 Working groups issue annual reports and also collect information that they then use to confront offending states.62

[*PG124] Although the establishment of working groups and rapporteurs considerably advances compliance of governments with human rights norms, both have major deficiencies.63 First, neither working groups nor rapporteurs can visit offending countries without invitation.64 Second, most of their reports are largely ignored.65 Third, lack of salaries causes elected individuals to work only part-time. This limitation is exacerbated by small support staffs, due to the scarce resources allocated to the Office of the High Commissioner for Human Rights.66

The final compliance mechanism is the human rights treaty body. Treaties have their own compliance and oversight bodies embedded within their structures.67 The First Optional Protocol to the ICCPR allows individuals to raise concerns directly to the Committee after exhausting domestic options for redress.68 Treaty bodies can be potentially powerful mechanisms to ensure compliance but have remained weak due to inadequate enforcement power.69 Many states remain reluctant to admit human rights and humanitarian abuses within their borders.70 At the same time, experts, as volunteers, have the same funding constraints from the High Commissioner as working groups and special rapporteurs.71 In addition, the Committee lacks jurisdiction over states that have not ratified such treaties, many of which, not suprisingly, have some of the worst human rights records.72

[*PG125]D.  Weaknesses of the United Nations Working Group on
Enforced and Involuntary Disappearances

To address disappearances in particular, the UN established the UN Working Group on Enforced or Involuntary Disappearances (UNWGEID) in 1980, the first of the thematic mechanisms created by the Commission on Human Rights to serve as a “channel of communication” between victims, families, and non-governmental organizations and governments.73 The body has the broad mandate “to examine questions relevant to enforced or involuntary disappearances of persons” by “seek[ing] and receiv[ing] information from Governments, intergovernmental organizations, humanitarian organizations and other reliable sources.”74 The UNWGEID must submit an annual report to the Commission on Human Rights.75 Since its establishment, 49,546 cases of disappearances have been transmitted to governments.76 While stressing the importance of providing families with the truth about the fate of their relatives, “the group has refrained from accusing governments [of violations], adopting instead a non-judgmental approach to secure the cooperation of governments in clarifying the facts.”77

[*PG126] After receiving and examining reports of disappearances submitted by various individuals and civil society organizations within a particular country, the UNWGEID transmits individual cases to the governments involved to push them to investigate and inform the UNWGEID of their findings.78 While these reports serve as an important mechanism to raise international scrutiny over certain countries, they usually reflect only a fraction of the disappearance epidemic.79 The recommendations also provide no compliance mechanisms by which governments may be forced to implement the guidelines provided.80

While UN-created institutions can provide recommendations to states, the primary duty falls on governments to combat disappearances.81 Governments must create effective prevention tactics before disappearances occur, devise successful legal mechanisms to investigate occurrences, and end the reign of impunity for violators of human rights.82 A brief background of Sri Lanka’s conflict will demonstrate the context against which the disappearance epidemic has plagued the nation.

II.  Sri Lanka’s Turbulent Past

Sri Lanka, with one of the most “complex plural societies in any part of the world,” has three major ethnic groups and four major religions.83 The last three decades produced two armed insurrections in [*PG127]the south and an unwinnable war in the north and east.84 Though the war has been divided predominately along ethnic lines, with the majority Sinhalese Government forces fighting against the Tamil rebel group, the Liberation Tigers of Tamil Eelam (LTTE), much intra-ethnic conflict has also emerged.85 The conflict in Sri Lanka has had a disastrous impact on the effective protection of human rights.86

[*PG128] The politicization of ethnic and religious separations has led to the elevation of the conflict in Sri Lanka.87 After obtaining independence from British rule in 1948, the governments in power adopted a series of Sinhalese-nationalist policies.88 Such policies effectively disenfranchised portions of the Tamil population, made Sinhala the national language, and afforded Buddhism state protection.89

Fueled by decades of marginalization, the 1970s brought a new sense of militancy to Tamil frustration.90 The resulting disturbances led to the strengthening of extremist youth groups within the Tamil community, including the LTTE.91 The deaths of government soldiers in Jaffna in 1983 sparked anti-Tamil riots throughout the country and deepened tensions between the two sides.

After 1983, the violence orchestrated by both sides became “organized, routinized, and systemized through disappearances, torture, [*PG129]rape, checkpoint searches, and massacres of entire villages in remote areas.”92 In particular, the creation of a new police commando unit, the Special Task Force, fueled the secret disposal of bodies of those arrested or detained.93

Except for a brief six-month hiatus in 1989, a nationwide state of emergency has continuously been in force since May 1983.94 As the conflict intensified between 1983 and mid-1987, many human rights violations occurred in the northern and eastern regions of the country, where Tamil communities dominate.95 The numbers of disappearances increased, as emergency regulations adopted by the government promoted torture without accountability and allowed for the effective concealment of prisoner killings.96

During this period of continuous emergency rule, the government admits that approximately 16,742 people disappeared, although human rights groups estimate a higher figure of 60,000.97 The failure of the government to stop the exponential progression of disappear[*PG130]ances developed, in part, from the failure of legal safeguards to withstand the corrosive effects of the emergency regulations.98

A.  Breakdown of the Legal System

Although the normal legal system in Sri Lanka contains safeguards to prevent disappearances and extrajudicial executions, the continuous years of emergency rule and growing tensions with rebel groups has undermined such protections.99

Article 9(1) of Sri Lanka’s Constitution guarantees that “[a] person shall not be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.”100 Article 10 provides further protections against arbitrary arrest.101 Violations of fundamental rights outlined in the Constitution are justiciable before the Supreme Court and before the Human Rights Commission of Sri Lanka.102 Violations [*PG131]of citizens’ rights and other injunctions by public officers may be brought before the Ombudsman, the Office of the Parliamentary Commissioner of Administration.103 Article 141 allows the Court of Appeal to grant and issue writs of habeas corpus to hear cases involving, “(a) the body of any person to be dealt with according to law; or (b) the body of any person illegally or improperly detained in public or private custody, and to discharge or remand any person so brought up.”104

Despite these protections, the growing opposition by Tamil secessionists in the late 1970s allowed Parliament to enact the Prevention of Terrorism Act (PTA) in 1979, which temporarily allowed for the prevention of terrorism and other unlawful activities through the suspension of certain rights of criminal procedure, particularly with regard to detention and arrest.105 Specifically, the PTA eliminates the legal requirement that a suspect be brought before a judicial office within 24 hours of arrest for an official detention decision to be rendered.106 In 1982, the government amended and incorporated the PTA permanently into national law, where it continues to be used.107

[*PG132] Though a state of emergency may occasionally be necessary to prevent a nation from “falling into chaos,” such necessity should not permit abuse by the government and excessive infringement of fundamental rights.108 The Sri Lankan government, however, has used the emergency regulations to normalize the use of grave human rights offenses, weakening basic standards of good governance and the rule of law in the country’s parliamentary democracy.109

Additional emergency regulations passed between May and September 2000 worsened an already catastrophic situation.110 New provisions granted members of the army and police the right to arrest and detain any person engaged in activities considered to be a threat to national security, authorized media censorship, and restricted freedom of association.111 The new regulations also conferred the power of arrest to “any authorized person,” rather than just state actors.112 The expanded powers contributed to the increase in disappearances during the period.113 The draconian security laws continued to provide prime conditions for “arbitrary arrest, lengthy detention of suspects without trial, and attendant abuses” through 2001.114

B.  Non-Government Entities Add to the Disappearance Epidemic

As in the case of many countries in conflict, the Sri Lankan government was not the only culprit guilty of human rights violations.115 [*PG133]For example, after solely targeting “traitors” who supported the ruling government, the LTTE conducted more indiscriminate civilian attacks in later years.116 Within their own courts, the LTTE publicly executed Tamils, often tying their bodies to lampposts to deter further insubordination.117 For the LTTE, eliminating dissent within the Tamil community was crucial to maintaining control.118

A number of Tamil militias that have aligned themselves with past governments have also used disappearances extensively.119 International human rights groups and foreign state departments have accused the People’s Liberation Organization of Tamil Eelam (PLOTE), and the Tamil Eelam Liberation Organization (TELO) of being major human rights offenders.120 Many of these paramilitary forces have held their detainees in unofficial detention centers, where torture is a common practice.121 The secrecy and undeclared nature of these centers weakened the Human Rights Commission (HRC) of Sri Lanka’s mandate to investigate and enforce respect for human rights by these [*PG134]groups.122 The secrecy of such organizations deters efforts to determine the exact number of victims.123 With the exception of placing tighter restrictions on weapons, the government has not acted to stop militia actions.124

C.  Political Maneuvers

The present government adopted a ceasefire with the LTTE on February 21, 2002, through Norweigan mediation.125 Though the details of the peace plan have not been publicly outlined and negotiations continue, the movement towards a cessation in the fighting will improve the ability of the government and the LTTE to effectively address the problem of disappearances.126 Maintaining the ceasefire will be the most difficult task facing the new government, evidenced by the fact that President Kumaratunga failed to maintain such a peace during the early years of her government’s rule, which began in 1994.127

By 2000 the United Nations Working Group on Enforced or Involuntary Disappearances had named Sri Lanka as a country with one of the highest numbers of “nonclarified” disappearances in the [*PG135]world.128 Accountability for past crimes should develop from targeted and effective strategies to rein in human rights violators.129 Past techniques used by previous Sri Lankan governments to address disappearances must be analyzed to provide guidance in developing more successful models to halt the lawless phenomenon.

III.  Methods and Strategies the Sri Lankan Government Has Undertaken to Deal with Disappearances

Allowing impunity for serious violations of human rights remains an incredible international problem.130 Many countries recently emerging from a repressive past must decide how best to address the abuses of former regimes. This could involve initiating official investigations of prior regimes in order to ingrain the rule of law within their societies, establishing truth and reconciliation commissions that disallow prosecutions in exchange for confessions of guilt for past human rights abuses, or neither.131 Governments have had to decide whether or not some or most of those responsible for the worst crimes should be brought to justice, even if this means annulling a previous amnesty law or risking violent backlash by military or security forces.132 Such countries must also decide whether to establish compensation schemes to provide for the victims and/or their families.133 The Sri Lankan government has initiated a series of measures in an effort to deal with the problem. Unfortunately, many of these initiatives hide underlying political agendas.134

[*PG136]A.  Politicized Investigative Commissions

In the last decade, the Sri Lankan government has established commissions to investigate massive human rights violations of recent origin.135 Under public pressure, President Ranasinghe Premadasa established the Presidential Commission of Inquiry into the Involuntary Removal of Persons in January 1991, but because its mandate of investigation started only from January 11, 1991, it missed the entire slew of violations that occurred during the Janatha Vimukthi Peramuna (JVP) and LTTE uprisings prior to 1991.136 Even when D.B. Wijetunga came to power after President Premadasa’s assassination in 1993, President Wijetunga again restricted the investigations to limited timeframes in order to avoid addressing the disappearances of Tamils in the early stages of the war.137 Later investigations established under President Chandrika Kumaratunga produced more credible results, but they also remained political in nature.138 The lack of government efforts to investigate disappearances after President Kumaratunga took office weakened the government’s movement towards greater accountability.139

Trying to move beyond the limitations of past commissions and expand the scope of the investigations, the People’s Alliance appointed three commissions in late 1994 to examine prior disappearances throughout the country.140 The commissions again had a restricted mandate to investigate and document the involuntary removal or disappearance of persons from 1988 to 1994, during the reign of the previous United National Party regime.141 Members of the [*PG137]commissions reported on disappearances and involuntary removals (abductions by non-state agents), identified those responsible, recommended whether legal proceedings should be pursued, and suggested relief and/or preventive measures to be undertaken.142

The commissions presented their final reports publicly in September 1997,143 with 27,526 complaints analyzed and 16,742 cases of disappearances established.144 The commissions also implicated hundreds of officers in relation to 3,861 cases, but prosecution of the alleged offenders has been slow, as the commission did not have a judicial mandate.145

Although the commissions were supposed to provide crucial evidence regarding the magnitude of the disappearance epidemic and spur litigation against those who perpetrated the crimes,146 only a small number of convictions against perpetrators of human rights [*PG138]abuses have followed.147 Of the total 4,000 suspected perpetrators that the commissions identified, approximately 500 have been indicted and even fewer have been convicted.148 This is largely because in cases initiated against suspects identified by the commissions, evidence for prosecution must come from investigations conducted by a special police unit, and not from evidence provided by the commissions.149 The reports merely serve as a record of the disappeared, providing recommendations without ensuring justice.150

In November 1996, the Sri Lankan government established the Defence Ministry’s Board of Investigation (BOI) in response to pressure from human rights organizations to establish an independent commission to specifically investigate the disappearances of those arrested by the army in Jaffna in mid-1996.151 Subsequent to probing a total of 2,621 complaints, the BOI established 765 disappearance cases.152

The BOI never made its findings public, and only submitted its results to the government in March 1998, thereby making verification impossible.153 The secrecy of the findings limited the initiation of legal action.154 A number of annexes in the report include evidence to justify further inquiries by the police, yet the Attorney General filed charges with regard to only 14 deaths that were found to have occurred at the hands of the security forces.155

[*PG139] Having Defence officials investigate their own crimes weakened the BOI’s mandate.156 Paramanathan Selvarajah, the president of the Missing Persons Guardian Association (MPGA) in Jaffna, stated that the BOI’s official findings “conceal[ed] the truth.”157 Although the MPGA gave details to the Ministry of Defence of 21 persons who disappeared from the town of Thenmaradchiin in northern Sri Lanka, including the details of the Sri Lanka Army soldiers involved in the incidents, no inquiries have been conducted.158 The BOI also mistakenly told the families of two of the disappeared that their fates were not known, in spite of the exhumation and identification of their bodies at Chemmani, Jaffna in June 1999.159

Such blatant error and general refusal to investigate documented cases of disappearance call into question the integrity of the entire investigation conducted by the BOI.160 Rather than working with civil society organizations to put to rest the fates of the disappeared, the BOI used its limited and politicized mandate to provide surface-level relief to families in Jaffna.161 Consequently, the unwillingness to make the findings public and to initiate charges against those suspected of crimes weakens the government’s credibility in the area of human rights and accountability.162 The investigations, while vital in documenting past atrocities, serve as only one step in providing justice to those who disappeared.163

B.  Ineffectiveness of Preventive Measures

Another vital step in creating an atmosphere of accountability comes from developing effective prevention tactics to ensure that dis[*PG140]appearances do not occur.164 While the Sri Lankan government has created some regulations and permanent institutions to curb the incidence of disappearances, such as the Human Rights Task Force (HRTF) of 1991165 and Emergency Regulation 18(8), many practices have not been enforced.166 The creation of a national Human Rights Commission in 1997, seen by many as a changing tide in overall attitudes towards accountability around disappearances, has suffered from weak prevention strategies and initiatives.167

Established by Parliamentary Act No. 21, the Human Rights Commission (HRC), with its 11 offices throughout the country, has an overall mandate “to inquire into, and investigate, complaints regarding procedures, with a view to ensuring compliance with the provisions of the Constitution relating to fundamental rights and to promoting respect for, and observance of, fundamental rights.”168 The HRC also advises the government on formulating legislation and administrative directives to protect and promote fundamental rights.169 The body itself promotes and provides education on human rights.170 [*PG141]In addition, the HRC makes recommendations to the government to ensure that national laws and administrative practices remain consistent with international human rights norms and advises the government on whether it should become a party to other international human rights instruments/treaties.171

Set up as a permanent national institution, the HRC can “investigate any infringement or imminent infringement of a fundamental right declared and recognized by the Constitution and grant appropriate relief.”172 Many envisioned that the HRC would complement the judicial system in the protections of human rights, as its powers reach wider than that of the Supreme Court.173

To improve the image of the Sri Lankan security forces regarding respect for human rights, founders endowed the HRC with the additional authority to monitor detention centers through inspection procedures.174 Under this implementation, when persons are arrested or detained under the PTA and the Emergency Regulations (ERs), the arresting authority must inform the HRC of the name and location of the person being held within 48 hours of the arrest or detention.175 Those who willfully fail to inform the HRC of an arrest or detention may face imprisonment for no longer than one year and/or be fined.176 Also, at the time of arrest or immediately thereafter, the arresting officer must issue a receipt acknowledging the arrest to a close relative.177 Any child under 12 years of age and any woman arrested or [*PG142]detained must be placed in the custody of the Women’s Unit of the armed forces/police or in the custody of a female military/police officer.178 Statements from those arrested or detained should be recorded in a language comprehended by the detainee.179

Security forces often ignore the crucial safeguards embedded in the ERs and HRC legislation, particularly the provision calling for an arrest receipt and the provision requiring that the security forces notify the HRC.180 Despite these continuous abuses, the government did not fine or imprison any security personnel for failure to comply with the regulations in 2000 or in 2001.181

When the HRC became fully operational in 1997, it filled the dual role as an investigative and protective institution, ensuring governmental compliance with human rights norms.182 Despite filling an important need, many human rights groups feel the HRC has not been pursuing its mandate effectively.183 For example, its first annual report, covering the period from March 1997 to March 1998, has never been available to the public, limiting the awareness of the crimes detailed.184 The HRC’s existence is a testament to the government’s improvement in shoring up mechanisms to address violations of human rights in Sri Lanka, but its inherent lack of necessary [*PG143]authority or political or financial support has enforced its weaknesses and offset its strengths.185

C.  Ending Impunity? The Attorney General: Indictments Without Convictions

The problem of impunity for human rights offenders has been a persistent issue for those championing human rights in Sri Lanka.186 Of the limited number of cases of extrajudicial execution or disappearance brought to trial, many take years and often fail to convict the offenders.187 In recent Sri Lankan judicial history, only two cases demonstrate the government’s new turn towards promoting human rights: the Krishanthi Kumaraswamy case of 1998 and the Embilipitya case of 1999.188 In light of these precedents, the government must enhance the political will of the Attorney General’s (AG’s) office to ensure greater numbers of prosecutions and to provide justice for the victims of disappearances.

The AG’s department in Sri Lanka has the legal right to conduct prosecutions in criminal courts and provides legal advice to law enforcement personnel during investigations.189 The AG has no right to direct or conduct criminal investigations.190 Special units, including the Missing Persons Commissions Unit (MPCU) established in 1999, operate within the AG’s department to directly prosecute specific crimes.191 Attorneys within the MPCU work with the Disappearance Investigative Unit (DIU), a specific unit within the police Criminal Investigation Department (CID).192 Working primarily from the lists provided by the Presidential Commissions’ findings, these two agencies work together to consider whether criminal proceedings should [*PG144]be initiated against security personnel suspected of involvement in extrajudicial activities.193

Entirely dependent on the work done by the DIU, the AG can only institute criminal proceedings based on evidence gathered by that unit rather than on the investigations done by the Commissions.194 This controversial limitation placed on disappearance investigations developed from inadequate funding provided to the DIU by the Ministry of Defense.195 The resulting lack of evidence in many cases forces the AG to delay and shelve many cases and allows the reign of impunity to continue.196 Others argue that having the DIU, a unit in the police department, investigate itself counters the legitimacy of its findings and undermines the pursuit of justice.197 Rather than bring disciplinary actions against the offenders, the lack of political will allows such culprits to continue working in their positions.198

In spite of these shortcomings, the AG’s office has indicted security force personnel, including paramilitary organizations and antigovernment elements, implicated by the Presidential Commission reports.199 In 2000 the AG’s office referred 348 files, involving 583 [*PG145]security force personnel, to the courts.200 The Government, however, has still not pushed ahead with fully investigating and identifying all military personnel involved in crimes violating human rights.201 In addition, many top officials have yet to be implicated for the crimes of their subordinates.202 Though the convictions in certain cases pursued by the AG’s office provide some optimism, the disproportionate number of convictions compared to the number of human rights violations, and the low ranks of the officers involved, demonstrates the superficiality of the remedies.203

A rare example of successful convictions of human rights offenders was demonstrated in the Embilipitiya case. In 1989, security forces abducted 24 schoolchildren and another individual from Embilipitiya Central College and nearby schools.204 The 1992 Human Rights Task Force annual report implicated eight soldiers and two officers of the Sevena army camp at Embilipitiya in the abductions and recom[*PG146]mended a full-scale investigation.205 The CID began investigations that same year and gathered further evidence against the abductors.206

The AG’s case, which opened in January 1996, ended three years later in February 1999.207 The landmark judgment sentenced six members of the security forces, including one brigadier and one principal of the high school, to ten years in prison.208 The High Court of Ratnapura found all seven guilty of abduction with the intent to commit murder and wrongful confinement.209

The Embilipitiya case crucially demonstrates the ability of the judiciary to provide justice through adjudication. Nevertheless, greater numbers of cases will arrive before the courts only through structural and procedural changes regarding the methods of collection and delivery of evidence to the AG.210 The institutions entrusted with such an important task must also be diversified to provide greater accountability between the actors.211

The Kumarasamy judgment demonstrates only a vague improvement in accountability around human rights violations. In 1996 a 17 year old student, Krishanthy Kumaraswamy, “disappeared” after she was raped and murdered by several members of the armed forces on duty at the Chemmani checkpoint.212 Family and friends who went in search of her were also killed.213 This case starkly illustrates the sever[*PG147]ity of disappearances and extrajudicial killings in Jaffna and the dire necessity for proper investigations and convictions.214

By 1998, the court sentenced six soldiers and one reserve police officer to death in the Kumaraswamy trial.215 This case demonstrated “the first time members of the armed forces and the police . . . [were] given maximum sentences for grave human rights violations.”216 In making his final judgment at the High Court in Colombo, Justice Gamini Abeyratne stated:

[i]n view of the strong evidence . . . deterrent punishment had to be imposed. The court cannot ignore the barbaric and brutal assault made on a schoolgirl . . . . [T]he accused held responsible positions in the Armed Forces and Police, but they attacked this young girl like a pack of savage animals.217

The weaknesses in the case, however, detract from its gains.218 Kumarasamy’s murder occurred in the “context of indiscipline and lawlessness sanctioned . . . by the Army top brass.”219 Rather than addressing the structural problems and complacency of the military to deal with the large numbers of atrocities in the north, a single trial served as the sole remedy to tackle the persistent problems of military rule.220

During the sentencing phase of the Kumarasamy case, another case emerged when former Lance Corporal Somaratne Rajapakse, one of the convicted, revealed knowledge of mass graves at Chemmani containing bodies of up to 400 persons killed by security forces in 1996.221 Five others substantiated claims of mass graves in the [*PG148]Chemmani area, where they alleged to have buried between 120 and 140 bodies on superior orders.222 In 1999, almost a year after Rajapakse made his revelations, exhumations started, in the presence of international observers and forensic experts, yielding 15 skeletons.223 After further forensic analysis, the experts presented the evidence in December 1999 to the Jaffna magistrate, demonstrating that ten of the remains showed signs of trauma and assault, which resulted in death.224 By the end of 2001, a total of 13 of the original 15 bodies still had not been identified.225

Lance Corporal Rajapakse, along with others convicted in the Kumarasamy case, implicated 20 security personnel for the killings.226 Yet by March 2001, authorities arrested only five suspects and issued another arrest order for a suspect who had fled.227 By June, authorities released on bail one suspect not charged with murder.228 Disappearances continued in 2000 to 2001 in the course of military offenses in the north and east, albeit on a smaller scale than in previous years.229 In December 2000, eight Tamil civilians went missing in December 2000 in Mirusuvil after arrest and torture by the Sri Lankan Army.230 Two soldiers identified as perpetrators admitted to the killings, while authorities later arrested one commissioned officer [*PG149]and six other soldiers.231 By the end of 2001, the government ordered an official inquiry and withheld the salaries of the soldiers.232 Transferred to Anuradhapura Magistrate’s Court, the case has not yet come to trial.233

D.  Discriminatory Compensation

In 1995 the government enacted the Registration of Death (Temporary Provisions) Act No. 2 to expedite the process of issuing death certificates in cases of missing persons who are presumed dead and to therefore allow for compensation payments to families.234 Next of kin of individuals killed during civil disturbances (i.e. violence or terrorist activity) must wait only one year before applying for registration of the disappearance.235 On the other hand, the Rehabilitation of Persons, Properties and Industries Authority provides funds only after the disappearance is confirmed through the issuance of a death certificate.236 Relatives of missing persons named by the Presidential Commissions have an easier time getting certificates.237 Between 1995 and 1999, with the issuance of more than 15,000 death certificates, more than 12,000 families received compensation.238

Though the process of legally obtaining death certificates has been accelerated, large-scale discrimination exists in the granting of compensation between regions and persons.239 Disparities in compensation awards highlight the discrimination, where relatives of a disap[*PG150]peared public civil servant receive 150,000 rupees (approximately $2,400), while all others receive only 50,000 rupees (approximately $800).240

Though some of the measures undertaken by the Government to deal with disappearances illustrate a positive path toward greater accountability, the infrequency of convictions demonstrate how insufficient such measures are. Seven convictions in the Embilipitya case, six convictions from the Krishanthi Kumaraswamy case, and four convictions for abduction perpetrated by 88 low ranking security force personnel encompass the totality of justice for the tens of thousands of people who have disappeared.241 Politicization of the Presidential Commissions, weaknesses of the HRC, and discriminatory compensation policies have all limited accountability for human rights violations. Without the political will to convict the guilty participants and strengthen the institutions monitoring violations, the reign of impunity will never be challenged.242

IV.  Recommendations for Ending the Disappearance Cycle

Although current measures undertaken by the Sri Lankan government have demonstrated a greater commitment to human rights, the new measures only superficially affect the deep-rooted problem.243 The UNWGEID, in its 1999 visit to Sri Lanka, outlined the weaknesses of the government’s efforts and provided recommendations to combat the disappearance phenomenon.244 Procedures must be adopted that not only meet international human rights norms, but that are specifically designed for the Sri Lankan context, ensuring that the rule of law counters the reign of impunity within the country.

In creating a model process to combat disappearances, the three strategies of prevention, investigation, and countering impunity must [*PG151]be strengthened.245 The first leg of prevention will deal with the training of armed forces and the provision of legal safeguards to ensure documented arrest and detention. The second leg of investigation will provide un-politicized commissions and investigations by police to provide greater evidence in support of cases of disappearance. The third leg will implement an effective system to combat the climate of impunity, to allow greater accountability for actions undertaken by security forces, and to provide justice through standardized trials in cases of disappearance.

A.  Prevention Procedures

The first step in such a model process involves the prevention of disappearances and other violations of human rights.246 Eradicating disappearances is a matter of political will, a duty which the Sri Lankan government has in maintaining public order.247 Some key areas of prevention include effective training of security forces, safeguards on arrest and detention, and norm internalization.

The Sri Lankan government must provide comprehensive training to security forces in human rights and humanitarian norms in order to ensure non-abuse.248 Greater supervision of troop activities by those adequately trained in human rights norms will also encourage the armed forces to be more attentive to their human rights obliga[*PG152]tions under international law.249 Effective control by superiors should help guarantee that disappearances do not occur.250

Security forces should also be trained to understand that they have a right to disobey or refuse to participate in activities that violate norms of human rights and a duty to report such breaches in conduct.251 This encourages accountability within the ranks and maintains allegiance to human rights in official operations. Overall restraints on the use of force should also be emphasized, in order to limit the commission human rights abuses in the field.252

In addition to the lack of adequate training for security forces, frequent disregard for safeguards to prevent arbitrary arrests, particularly the legal obligation to inform the HRC of arrests and detentions, has persisted in Sri Lanka.253 The government must increase accountability to the HRC’s notification requirement during times of arrest.254 Penalties already guaranteed under the HRC’s mandate, ranging in severity from fines and/or imprisonment for not more than one year after trial, must be enforced and possibly elevated for those soldiers and officers who disregard this essential rule.255 A system must be created, through effective training and human rights norm internalization, where compliance to the law becomes the norm and not the exception.

Receipts of arrest, already guaranteed under the HRC’s mandate, must be standardized.256 Relatives of those arrested and/or detained must be notified to ensure an additional level of accountability if human rights violations occur.257 Penalties should be enforced against [*PG153]those who disregard such essential safeguards, and places of detention should be regularly inspected by the HRC and other human rights monitors to ensure that disappearances and incidents of torture are not concealed.258

Most importantly, basic human rights norms and treaties must be made widely known in order to become effective.259 All members of civil society should be made aware of the rights they are accorded and the protections they are guaranteed. The principles should be translated in all languages spoken in Sri Lanka and embedded into government-sponsored teaching and discussion programs.260 Only when such norms become entrenched within Sri Lanka’s rule of law and culture will the frequency of disappearances decrease.261

B.  Investigative Procedures

The second leg of an improved Sri Lankan model to prevent and combat disappearances involves the effective investigation of all alleged cases of disappearance.262 Investigations will uncover information concealed by the perpetrators, help those victims still alive, and/or provide crucial evidence to initiate charges against the offenders.263

Investigating bodies must be impartial, have necessary powers and resources, be staffed by professionally competent personnel, and be protected from intimidation.264 The Sri Lankan Attorney General’s lack of independence to conduct thorough case investigations must [*PG154]be remedied.265 The Disappearance Investigative Unit of the Police Department should not be the sole authority responsible for providing crucial evidence to initiate charges against human rights offenders, some of whom are within the department’s own ranks.266 Branches of the AG should possess investigatory powers when looking into cases of disappearance, separating the suspected violators from the investigations. At a minimum, the DIU should be fully staffed and funded by the government to carry out their investigations and provide evidence to the AG’s cases in a competent and effective manner.267

Commissions of inquiry and national human rights commissions should be established to investigate past patterns of disappearance as well as individual cases.268 They should be able to make recommendations for criminal prosecution, consider institutional changes necessary to prevent the disappearance phenomenon, and aid in compensation and other forms of redress for family members.269

Though limited by the set dates of disappearances they could investigate, the Presidential Commissions and the Board of Investigation in Sri Lanka served as an important first step in addressing the disappearance phenomenon.270 The government must now establish a permanent disappearance commission, with an expanded mandate to investigate disappearances as they occur.271 At a minimum, a body should be empowered to investigate disappearances and implicate perpetrators post-1995.272

The present government must be willing to control disappearances as they occur rather than blame prior regimes for the continuing problem. Expanding the commissions’ mandates and creating a [*PG155]permanent commission will institutionalize investigations and provide long-term accountability.

C.  Tackling Impunity

Under the third leg of a model for reform, the Sri Lankan government must ensure that effective judicial remedies exist for family members of the disappeared, so as to end the reign of impunity for perpetrators of such crimes.273 Impunity is the root cause of the prevalence of disappearances and one of the major obstacles to discovering the truth in past cases.274

Legal and constitutional changes in Sri Lanka should be initiated to provide greater accountability for disappearances.275 The act of enforced disappearance should be made a separate offense under Sri Lankan criminal law, “punishable by appropriate penalties as stipulated in [A]rticle 4 of the United Nations Declaration on the Protection of All Persons from Enforced Disappearances.”276 This will classify the phenomenon as a crime under law and allow for more efficient and greater numbers of prosecutions.

The prohibition against enforced disappearance should also become a fundamental right in the Sri Lankan Constitution, which allows a petition to the Supreme Court under Article 13 irrespective of whether the disappeared person is presumed alive or dead.277 This measure will allow more efficient prosecutions, as proof of death will no longer be an impediment to initiating charges against the perpetrators, and hence provide faster relief for families.

The Prevention of Terrorism Act (PTA) and the Emergency Regulations (ERs), main factors contributing to the steady level of disappearances, should either be either abolished or modified to render them consistent with international human rights norms.278 The [*PG156]provisions of the PTA should be revised to follow normal Sri Lankan criminal procedure by allowing an arrested suspect to be brought before a judicial officer within 24 hours, thus reducing the likelihood of abuse by arresting authorities.279

There should also be legal limits on the ability of the Sri Lankan government to declare emergency rule, which subsequently degrades fundamental rights such as personal liberty and freedom from arbitrary arrest and detention guaranteed under the Constitution.280 The PTA, the PSO, and the ERs must be repealed or amended to limit the government’s emergency powers during times of war and peace. Such limits are essential under the current ceasefire to ensure the country’s steady return to the rule of law through the peace process. The enactment and effective implementation of such measures will prevent acts of enforced disappearance in the future.281

The government also must ensure an increase in prosecutions and convictions of offenders.282 Prior efforts to ensure steady prosecutions have failed, with low numbers of convictions and even promotions of suspected perpetrators, despite expanded criminal investigations by the DIU and the AG.283 The government must hasten efforts to bring suspects to justice by empowering the Missing Persons Commissions Unit of the AG’s office or another independent body to indict suspected perpetrators.284 More thorough and less politicized investigations by the DIU of the Police Department and the establishment of permanent commissions will provide solid evidence by which prosecutions may begin and convictions may be sought.

Overall, the judicial process must be prompt, impartial, effective, fair, and open.285 Sri Lanka must comply with Article 18 of the Decla[*PG157]ration on the Protection of All Persons from Enforced and Involuntary Disappearance and must not pass any amnesty law or similar provision to exempt perpetrators from criminal proceedings or sanctions.286 In disappearance cases, statutes of limitations should not apply, the defense of superior orders should not be a permissible defense, and the full scope of liability for prosecution and universal jurisdiction should apply.287 Sri Lanka must take full responsibility for past and present disappearance cases in an effort to provide justice and accountability for those who lost their lives through senseless acts.288

Conclusion

What we are doing is trying to give a voice to the voiceless, so that their stories can come out.289

Though the Sri Lankan government has taken small steps to tackle the disappearance epidemic plaguing the nation, the government has not ensured the strength and efficacy of such institutions in the long term.290 Legitimate and comprehensive commissions of inquiry into past abuses under former regimes must coexist with those investigating and exposing present abuses. The Presidential Commissions exposed crimes from the past within a specified, politically determined time period. The Board of Investigation for Jaffna, which focused only on 1996, revealed the continuing problems plaguing the security forces, but also only on a limited scale. The Human Rights Commission and the Attorney General’s office, with its unenforceable mandates, provides ineffective remedies and prevention strategies for combating disappearances.

[*PG158] The need for effective prevention, investigation, and judicial strategies to bring perpetrators to justice remains crucial to curbing the disappearance phenomenon. As the LTTE transforms into a political organization through the peace process, the need for justice and reconciliation remains vital.291 Only by ingraining notions of accountability and providing justice for victims in Sri Lanka will the cycle of disappearances finally end.

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