Sri Lanka’s disappeared, visit of Navi Pillay and another Commission of Inquiry

Photo credit Vikalpa

On 30^th August – International Day of the Victims of Enforced Disappearances – hundreds of families of disappeared persons in Sri Lanka, most of them Tamils and from the war affected North and East, will travel to Colombo to meet with the UN High Commissioner for Human Rights, Ms. Navatheenam Pillay, at the tail end of the High Commissioner’s visit to Sri Lanka. Several hundred demonstrated in the Northern city of Jaffna and Eastern city of Trincomalee during Ms. Pillay’s visits there on 27^th – 28^th August, and few got to meet with her in person.

I have wondered why these families of the disappeared are so enthusiastic – or perhaps desperate – to meet with the High Commissioner – or to just be seen and heard by her. My lasting memory from the visit of Ms. Pillay’s predecessor, Ms. Louise Arbour, to Sri Lanka in October 2007 is of desperate women whose family members had disappeared, clutching at Ms. Arbour’s outstretched hand through the gates of the Bishop’s House in Jaffna, and pushing letters and photos of their loved ones through to her as well. In a subsequent meeting, Ms. Arbour narrated how moved she was by these women, and the number of appeals she’d received from them.

Many of these women have also submitted complaints to the UN Working Group on Enforced and Involuntary Disappearances. The Working Group, considered to be the foremost global authority on the subject, has received the 2^nd largest number of complaints in it’s 33-year-old history, from Sri Lanka – 12,473 cases reported, and 5,676 unresolved. In March this year, few families of those disappeared again went to attend the UN’s Human Rights Council sessions in Geneva, seeking truths about what had happened to their loved ones, despite being discredited and intimidated by Government officials in their previous visits to Geneva. Most families I knew and worked with have never refused to repeat their stories to numerous foreign journalists, film makers, researchers, activists, students, diplomats and others who have wanted to talk to them – the hope that someone will help find their loved one.

These families – many of them women – have braved threats, intimidations, restrictions and financial problems to continue their unwavering search for their loved ones. Many have told me stories of how they had walked to Army camps, Police stations, hospitals across the country, in search of their loved ones, and I had seen for myself their desperation and anguish the few times I have joined some of them in their search. They have organized and joined numerous protests, vigils, religious events, press conferences, seminars, exhibitions etc. and have complained to the Police, National Human Rights Commission, the International Committee of the Red Cross (ICRC) and even filed Habeas Corpus cases in the court. These families have also written letters to the President, First lady, Government and opposition politicians, and also complained to numerous Commissions of Inquiries. This brings me to the latest but familiar and almost routine eye-wash the Government has proposed – yet another Commission of Inquiry (COI) to look into disappearances.

What’s the point in YET another Commission of Inquiry?

On 15^th August 2013, with the visit of Ms. Pillay looming ahead, President Mahinda Rajapakse appointed the latest Presidential Commission of Inquiry to look into disappearances in Sri Lanka. It was given a mandate to gather evidence about persons from the Northern and Eastern provinces who had been abducted or disappeared, their current whereabouts, person/s responsible, legal action that could be instituted, measures for non-reoccurrence and reparations to be granted. So far, this has been a totally government driven initiative – there has been no consultations with families of disappeared, opposition politicians, human rights defenders, lawyers who have wide experience in appearing for these families etc., about the scope, terms of reference, who should be commissioners etc. In short, there is absolutely nothing to indicate this Commission is not eye-wash and would be any better than any of the previous ones.

To those who are happy to have their eyes washed, it might seem like a promising indicator of the Government’s commitment to address disappearances. However, we cannot forget the numerous other commissions of inquiry and committees on disappearances and broader human rights concerns, where disappearances figured prominently, that have come to no avail. To list a few examples;

• The Presidential Commission of Inquiry into Disappeared (The Mahanama Tilakaratne Commission) – appointed in September 2006 and a preliminary and final reports handed over to the President by 2007
• The Commission of Inquiry appointed to investigate and inquire into (16 specific cases) serious violations of human rights alleged to have occurred since 1^st August 2005 (The Udalagama Commission)- appointed in November 2006, with the final report being handed over to the President in June 2009
• The Monitoring Committee on abductions and disappearances – appointed in June 2007. There has been no indication of whether it continues to function or has been disbanded or what it had achieved
• The Special Committee to inquire into abductions and the recruitment of children for use in armed conflict – appointed in August 2007, there has been no indication of whether it continues to function or has been disbanded or what it had achieved, to date
• The Lessons Learnt and Reconciliation Commission (LLRC), appointed in May 2010, with an interim report in September 2010 and the final report made public in November 2011

Except that of the LLRC, none these Commission’s findings and recommendations have been made public. Thus, families of those who disappeared and other activists who testified and assisted these Commissions and Committees are still awaiting results of their painful efforts to cooperate with these initiatives. All we have witnessed as follow up to some the Commissions are a series of ‘red herrings’ (code named “Committees”) – such as the Cabinet Sub-Committee to monitor the implementation of the proposals of the National Human Rights Action Plan (February 2012), the Inter-Agency Advisory Committee to facilitate the implementation of the LLRC’s interim recommendations (October 2010), and the appointment of the Secretary to the President to monitor implementation of the recommendations made in the LLRC (May 2012).

I had only mentioned Commissions/Committees appointed after 2006 by the Rajapaksa Government. There have been many more. Even the Commissions appointed by previous Governments, such as the All Island Commission of Inquiry and three zonal COI’s appointed in the mid-1990s have not been made available in full to families of victims and others who went before the Commissions. Activists allege that military and police officers who were implicated have been promoted or transferred, and even the few prosecutions have not led to convictions.

So how different will this Commission be from previous ones? Will any positive and constructive findings and recommendations be hidden and made to disappear, like those of previous Commissions? What is the real motive behind the appointment of yet another Commission? Why would families of the disappeared go before YET ANOTHER Commission, which has been appointed by the same government most believe is responsible for these disappearances and in whose formulation they were not consulted at all?

Me and other activists will again face a dilemma of whether to boycott the Commission to avoid legitimizing it, and postpone genuine reform, or engage with yet another red herring, hoping against hope it will be different or that at least an ounce of good will comes out of it?

But my experience has been that desperate family members of the disappeared will clutch at any straw, and so, like in the case of the previous Commissions, they would in all likelihood go before this Commission too leaving it solely at the discretion of the Commissioners to genuinely assist the families, or help white-wash the Government yet again.

Denials, threats, obstructions in searching for the disappeared:

The general approach of this government led by President Rajapaksa, a one time champion of Sinhalese families of the disappeared, is to deny disappearances and play it down by blaming it on some rouge elements in the Military or Police. Or intimidate and threaten those campaigning for truth and justice and label them as “traitors”. Many women have told me that they have been asked by military/police and intelligence agencies where they have lodged complaints and to whom they have narrated their stories. Some have even been explicitly told to not share their stories with foreigners.

In March this year, the Police stopped hundreds of family members of disappeared persons from the North of Sri Lanka, from coming to the capital in Colombo, to hand over a petition to the UN. I’m crossing my fingers that the hundreds of families of disappeared travelling down to Colombo to meet with Ms. Navaneetham Pillay tonight, even as I write this, will be allowed to come. In December 2012, Police arrested several family members and human rights defenders and confiscated equipment, after the screening of a film at the end of a meeting regarding disappearances. Numerous other acts of threats and intimidation have been reported in the last few years.

Sri Lankan courts habitually postpone for months at a time, life and death Habeas Corpus cases. The National Human Rights Commission (NHRC) refuses to accept complaints and to use it’s powers to conduct unannounced raids when information is communicated about disappeared persons, and the Police seem the least bit interested in dealing with disappeared cases. According to the wife of a person who surrendered to the Army and disappeared, that she had come three times to the courts after filing a Habeas Corpus case, but the Army had not appeared and the courts seemed reluctant to take any firm action. Similarly, after a complaint was made to the NHRC about Police stopping families of disappeared persons from coming to Colombo, the Police had not attended both hearings held to date, and the Commission seems reluctant to take action.

In a recent development, a Government Member of Parliament publicly claimed that he had seen disappeared journalist, Prageeth Ekneligoda in France. He later admitted in courts that he had actually never seen Prageeth when he had been alive. Previously, the Legal Advisor to the Cabinet, Mohan Peiris (who has since been appointed as Chief Justice), told the UN Committee against Torture, that Prageeth Ekneligoda was living overseas. He recanted this later by telling courts that he doesn’t know where Prageeth is, and that “God only knows” where he must be. Both these Government officials have not been held accountable for their callous statements that mislead the justice system, the UN, general public and caused grief to Prageeth’s traumatized children and wife.

More recently, I was told of instances where death certificates had been issued in the North to family members of disappeared persons forcibly. This was while the families were still in pursuit of the whereabouts of their disappeared loved ones and still believed them to be alive, and did not want to have death certificates until the fate of their loved one was clarified.

The victims and the perpetrators:

In the 1970s and 1980s, tens of thousands of young people from the majority Sinhalese community disappeared. Since then, most victims have been minorities, with Tamils constituting the main target. Majority of the victims I have heard about are young male Tamils. Since 2006, there have been many ordinary citizens who had disappeared, including a senior Tamil academic, two Tamil Catholic priests, journalists, aid workers and even two human rights defenders who were campaigning against disappearances. Many cadres of the rebel group, Liberation Tigers of Tamil Eelam (LTTE), including some top leaders, disappeared after surrendering to the Army in front of family members and hundreds of eyewitnesses. In a rare case, two political activists were released after being abducted in April 2012. They attributed their release to the pressure exerted by the Australian government, as one of the victims was an Australian citizen.

Numerous eyewitness accounts I have heard from family members and others, indicate that the military, police, and para-military groups are responsible for most of the disappearances. Some have disappeared from highly restricted detention facilities and hospitals in the aftermath of the war, guarded by the military and police, where no one was allowed to enter or exit without prior permission and being registered. Others disappeared between checkpoints that almost always searched vehicles and persons passing through, and in heavily militarized areas such as Jaffna. Several who have disappeared, re-appeared in Police custody a few days later, without any explanation. Some have been dragged away from their homes by persons identifying themselves as Police/Military officials and never seen again. Others have simply disappeared after leaving home to go to work or elsewhere. Fishermen have disappeared at sea, taken away by the Navy or the LTTE. I have also come across numerous accounts of persons disappearing after being taken away or forcibly recruited by the LTTE, particularly amongst those who had disappeared during the last phase of the war between January and May 2009, in Northern Sri Lanka. Even families of military and police personnel are seeking answers from the government about their family members who had gone missing, allegedly at the hands of the LTTE.

The numbers – if they matter:

Disappearances still seem to continue. In June this year, Sivasooriyakumar Sanaraj, a 15-year-old Sri boy went missing in Northern town of Vavuniya. I had mentioned several more cases that I had come to know personally, in 2010-2012 in an article I wrote on the subject last year[1].

It has thus far been impossible to compile a comprehensive list or collate accurate numbers of those disappeared. Figures reported by the Police, Commissions of Inquiries and media are alarming by themselves, even though they are likely to be under-reported. Many families of disappeared persons have not complained to any, single body, due to fear, lack of confidence and other related factors.

At least 56 persons were reported as having disappeared from 1^st January to 9^th July 2012[2], including a period where one person was reported to have been disappeared every five days. Statistically, this was an improvement from 2007, when a report my colleagues and I prepared, estimated five persons being reported as killed or disappeared every day[3]. The International Committee of the Red Cross (ICRC) was reported to have documented 1134 cases of disappearances in 2006, and 571 in January-April 2007[4]. According to figures from Police Head Quarters (quoted in a report in the Thinakkural newspaper of 1^st September 2008,) 1000 civilians had been
abducted during the first 8 months of 2008, 1229 during 2007 and 1,160 in 2006.  The Lessons Learnt & Reconciliation Commission (LLRC), a Presidential Commission of Inquiry, whose mandate was broad enough to receive a variety of complaints including that of disappearances,  received complaints of 3,596 [5]disappearances out of which, 1018 were initially arrested by the military (believed to also include those who surrendered,)[6]. The Chairman of another Presidential Commission to probe abductions, disappearances and killings was reported to have stated that 711 disappearances reported between January 2006 and February 2007, remain unresolved[7].

As soon as Ms. Pillay, UN High Commissioner for Human Rights arrived in the country, the Colombo Additional Magistrate was reported to have ordered the Terrorist Investigation Division (TID) to launch immediate investigations into the disappearance of 2,550 people who had gone missing in the North and East[8]. It’s left to be seen whether the families of these persons and the public will even hear the results of this investigation or whether it’s a yet another public relations exercise to eye-wash the international community during Ms. Pillay’s visit.

What the families expect:

Four years since the end of the war (2009), families of those disappeared are still unable to find the truth about what has happened to their loved ones, and receive the sympathy and support of the Government and society at large. As long as these horrific crimes are not formally acknowledged, and justice and accountability is served, reconciliation will remain elusive.

The issuance of death certificates should be with the full and informed consent of the family, without there being imposition of conditions. Families should also be entitled to compensation purely for the crime of disappearance and the trauma related to not knowing, that ensues. This way, impoverished families of the disappeared will not be compelled to forgo their rights to truth and justice, in order to qualify for reparation which is also their right. Most persons who have disappeared are those who are income generators for the family, which has left families destitute and improvised. I have met families who struggle to feed and educate their children, and cannot even afford to go for a court hearing or demonstration. As such, substantial livelihood support measures for families of the disappeared are crucial. Opportunities for counseling is also vital, as most of these families, including elderly parents and young children, are left severely traumatized. Sadly, the Government is not providing any such support, and in order to avoid stories of disappearances and other abuses being revealed, even blocks organizations that do try to provide such support.

A serious commitment and political will on the part of the Police, National Human Rights Commission and the Judiciary is required to deal with disappearances, particularly in terms of prioritizing dealing with disappearances, instead of delaying. Criminalizing disappearances remains long overdue. The Prevention of Terrorism Act (PTA) has to be repealed or brought in line with Sri Lanka’s international human rights law obligations. The PTA, which, under the guise of countering terrorism, has removed safeguards of those arrested as “terrorist suspects”, will continue to nurture disappearances if left as it is. Publishing a comprehensive list of detainees is another practical step that needs to be taken by the State. The right to have monuments, commemorations, religious/ cultural events, non-violent protests and other campaign activities, should also be guaranteed, void of any obstruction or threat, as has been the case in the past few years.

At the international level, the Sri Lankan Government should responding positively to the seven years pending request of the UN Working Group on Enforced and Involuntary Disappearances to visit Sri Lanka, ratify the International Convention for the Protection of All Persons from Enforced Disappearance and the Optional Protocol to the Convention Against Torture. All of which will go a long way in preventing disappearances, and also send a signal of political commitment to deal with disappearances and guaranteeing non-reoccurrence of this never ending crime.

If Sri Lanka is to progress towards reconciliation, all Sri Lankans must treat dealing with disappearances as a major priority, as their own problems. Families of the disappeared deserve the empathy, and full support of all people of good will, in their search for truth and justice.