Photo courtesy of Kumanan Kanapathippillai

Today is the International Day of the Victims of Enforced Disappearances

As the world marks another International Day of the Victims of Enforced Disappearances, in Sri Lanka, which has the second highest number of forcibly disappeared in the world after Iraq, families of victims continue their relentless quest for answers.

Earlier this month, women in the north and east marked 2,000 days of continuous protests demanding to know what has happened to their relatives. In the south, 50 years after the first JVP insurrection, women are still looking for husbands and children who went missing, joined by thousands of other families whose relatives disappeared during the second revolt in the late 1980s.

While the victims continue pushing for truth and justice, political and military leaders against whom there is well documented evidence of war crimes and crimes against humanity continue to hold high positions and are even rewarded with accolades and titles. Chief of Defence Staff and former Army Commander Shavendra Silva, for example, can no longer visit the US because he has been placed on a list that prohibits people suspected of war crimes from entering the country.

Former President Gotabaya Rajapaksa is roaming the world looking for a safe haven while human rights organisations have made it clear that they are going after him. When he was in Singapore, the International Truth and Justice Project (ITJP) filed a criminal complaint with the Attorney General demanding that the government there arrest him for crimes committed during the country’s 2009 civil war based on the principles of universal jurisdiction. It argued that Mr. Rajapaksa had committed acts that breached the Geneva Conventions during his time as Defence Secretary.

Mr. Rajapaksa is expected to return to Sri Lanka sometime next month. “Ideally, he should be arrested and charged in relation to command responsibility for attacks on civilians, enforced disappearances, the execution of surrendering LTTE cadres and other crimes allegedly committed by Sri Lankan troops while he was Secretary to the Ministry of Defence. Any charges should also cover actions he has taken since his election as President in 2019, as well as the disappearances that occurred while he was the Army’s District Coordinator in Matale in 1989,” Director of the Sri Lanka Campaign for Peace and Justice Ben Kumar Morris told Groundviews.

“He could be tried in a Sri Lankan court or the government could even request the International Criminal Court to carry out an investigation into his alleged offences. In the current political climate, however, it seems very unlikely that he would be charged with any offences,” Mr. Morris added.

Singapore, however, declined to take any action against Mr. Rajapaksa. “Whilst Singapore’s response was disappointing, it was not entirely unexpected. Singapore had been the first country which offered Gotabaya Rajapaksa temporary residence and whilethere was always an outside chance that they might arrest the former president, Singapore has never previously applied universal jurisdiction. While it is certainly difficult to secure the international arrest of prominent political or military figures due to the politics involved with, there have been few opportunities for countries to apply universal jurisdiction to Sri Lankan military and political leaders,” Mr Morris pointed out.

In the absence of a viable domestic process, families of victims are demanding that the international community takes a stronger role. Earlier this month the Families of the Disappeared called for the former president’s arrest “regardless of which country he is hiding in”. One hundred and thirty four parents have died without knowing what happened to their children.

“Rajapaksa ruthlessly declared that a large number of our relatives, who had surrendered during the final war of 2009, had died. This includes 29 infants and children. He played a major role in the disappearance of our loved ones as the then-Defence Secretary, and issued orders to carry out a pre-planned genocide,” the association said in a letter to the United Nations High Commissioner for Human Rights Michelle Bachelet.

Demanding justice for the alleged crimes committed by the Armed Forces, the association also called for former president and prime minister Mahinda Rajapaksa to be brought before the International Criminal Court (ICC).

While it is certainly not an easy matter to prosecute and jail former and serving political and military in the light of the reluctance of their own governments to pursue this course, there have been some notable successes. Former Peruvian President Alberto Fujimori was a polarising figure who has some close parallels to Gotabaya Rajapaksa. While some Peruvians praised him for defeating the Maoist Shining Path guerrilla movement, others despised him for human rights violations carried out under his government that resulted in the deaths of an estimated 69,000 people.

Following a bribing scandal, Mr. Fujimori fled to Japan, resigning by fax. Five years later, he flew to Chile, where he was arrested and extradited to Peru. His goal was to run for Peru’s presidency again but instead he was put on trial where he was sentenced to 25 years for murder and corruption charges including authorising a number of killings carried out by death squads. He has repeatedly denied the charges.

Another leader who was arrested for crimes against humanity was General Augusto Pinochet who ended Chile’s constitutional government and brought in 17 years of military rule in 1973. According to the U.N. Human Rights Commission, 250,000 people were detained for political reasons in the four months following the coup.

Foreign nationals in Chile, including diplomats, were among the killed or disappeared. A worsening economic situation and drop in popularity forced General Pinochet to return to a democratic government with an elected president in 1990 but General Pinochet remained head of the military. The new president set up a National Truth and Reconciliation Commission that collected more than 3,400 cases of human rights abuses to investigate. Another organisation that continued the commission’s work concluded that 3,197 people died or disappeared at the hands of state agents.

In October 1998, General Pinochet travelled to England for back surgery. He was arrested on a warrant issued by Spanish prosecutors investigating the deaths of Spanish nationals by Chilean security forces. His detention established a precedent in the enforcement of international human rights law.

He was released on grounds of ill health and returned to Chile in 2000. In 2004, a Chilean judge ruled that General Pinochet was medically fit to stand trial and placed him under house arrest. By the time of his death in December 2006, about 300 criminal charges were pending against him for numerous human rights violations as well as tax evasion and embezzlement.

In a landmark case earlier this year, Germany jailed a former colonel in the Syrian army for murder, sexual violence and torturing prisoners, showing that there is no safe haven in Europe for those accused of war crimes and crimes against humanity.

Although not accused of committing human rights violations, former Malaysian prime minister Najib Razak was jailed for 12 years for corruption linked to the looting of a state fund despite the fact the Mr. Razak remains politically influential and his party leads the current government.

The issue of forcible disappearances will figure prominently at the 51st sessions of the UN Human Rights Council (UNHRC) starting from September 13. The UNHRC has recognised the need to preserve and analyse evidence of human rights violations in order to promote accountability. This was done through Resolution 46/1, establishing the Sri Lanka Accountability Project.

Foreign Minister Ali Sabry said that Sri Lanka would continue to reject outright the UNHRC’s attempt to collect evidence from outside sources and to develop possible strategies for future accountability processes. Instead he proposed a high powered official committee to identify a process to enhance reconciliation and human rights under a domestic legal framework.

The Core Group on Sri Lanka was confident it would be able to pass a strong resolution, at least as strong as 46/1 in March 2021, according to an international human rights activist who participated in discussions. The mandate of the evidence gathering mechanism was likely to be extended by at least 18 months or even two years, since the team had not been able to function to full capacity because of delays in funding.

Human rights organisations are pushing for a stronger resolution than 46/1; they want the UN to make more requests and demands of other member states, strongly encouraging them to use universal jurisdiction and bilateral sanctions as alternative accountability tools and to demand progress human rights and accountability, as well as governance reforms, in exchange for economic bailouts and privileged trading status, the activist said.

Strengthening the language of the resolution was also considered important, as was emphasising the failure of the government’s own accountability mechanisms and lack of willingness to properly engage with international ones. They want to counter the narrative G.L. Peiris was pushing when he was Foreign Minister that Sri Lanka should be left to manage these matters internally and now reiterated by the current Foreign Minister.

Director of the Sri Lanka Campaign for Truth and Justice, Ben Kumar Morris, answered questions from Groundviews on the issues facing Sri Lanka’s transitional justice process.

Is it possible to ever have sustainable peace without truth, justice and accountability?

Sri Lanka’s recent history has clearly shown that a ‘peace’ without truth, justice and accountability is no real peace at all. The situation in the North and East of the country is testament to that. Without any process for achieving truth or accountability, victim-survivor communities, particularly Tamils, cannot begin to trust the state. As this process has not occurred and because the grievances that led to the outbreak of the war have not properly been addressed, the only way that so-called ‘peace’ can be maintained is with an enormous military presence. The government maintains this peace through intimidation and fear, a practice that is both inhumane and unsustainable. This occupation will only create more resentment among the Tamil community and has furthered the disconnect between ethnic groups.

What are examples of successful international interventions that have forced governments to take up the issue of enforced disappearances?

Usually these interventions have been most successful when there has been some degree of collaboration between international bodies and national governments on the issue of disappearances. After the collapse of Argentina’s military junta in 1983, there was a domestic truth and accountability process, but many of those convicted were pardoned just a few years later. It was not until this century that the Argentinian government resumed the accountability process for enforced disappearances and other abuses committed by the military junta. This new wave of accountability followed international pressure from foreign governments and international institutions, as well as domestic pressure from the mothers of the disappeared, Argentinian civil society and the broader public. This process has been far from perfect and the families of the disappeared in Argentina continue to suffer grievously, but much more progress has been made in Argentina and other South American countries than in Sri Lanka.

Is there is enough well documented evidence against Sri Lankan leaders and military men to accuse them of war crimes and crimes against humanity?

Because no political or military leaders in Sri Lanka have yet faced trial for war crimes or crimes against humanity, we cannot conclusively state that there is enough evidence to convict them. However, it seems quite plausible that the evidence that has been gathered would be sufficient. The UN Office of the High Commissioner for Human Rights’ 2015 report acknowledges that war crimes and crimes against humanity occurred in the final stages of the war and lawyers affiliated with the International Truth and Justice Project have pursued cases against General Jagath Jayasuriya, among others. The US State Department designated General Shavendra Silva for sanctions due to his alleged involvement in war crimes – this decision would not have taken without credible evidence of his wrongdoing.

Is the Global Magnitsky Act is an effective tool and should it be applied more widely and forcefully, especially in Sri Lanka’s case?

The Global Magnitsky Act cannot provide full accountability for crimes like enforced disappearances, as sanctions do not have the same legal weight as criminal convictions, which are what many victims and families want to see. However, targeted sanctions can still be a limited but effective form of accountability and should certainly be used more often. Should a prominent Sri Lankan military or civilian official be designated for sanctions under the Act, that individual would no longer be able to travel to the country where he has been sanctioned. This could affect their career if their role involves travel – quite a few former generals have been made ambassadors in the recent past, and such sanctions would have a tangible effect. Some Sri Lankans who are credibly accused of involvement in gross human rights violations also have assets in foreign countries, and those assets would be frozen if they were sanctioned by those countries. Critically, such sanctions would impact the reputation both of that individual and the institutions they are part of, which may have a significant impact on their reputation in Sri Lanka as well.

The Foreign Minister has said that Sri Lanka will look to a domestic legal framework to enhance reconciliation and rejects Resolution 46/1 calling for evidence collection and preservation. Should the international community accept this?

When drafting resolutions on Sri Lanka, the international community must centre the needs of victims, survivors and their families who are in the most desperate need of truth, justice and accountability. When we speak with these communities, they almost universally reject the ideas being pushed by the Foreign Minister. Since the 1980s, successive governments have set up more than a dozen bodies to investigate options for truth and accountability. Some have made important findings and put forward valuable recommendations. Almost none of these recommendations have been implemented, and many have been outright rejected. Those which have been implemented have been failures – what use is it to have an Office on Missing Persons when not one mother has learnt the fate of her missing child? Most victims, survivors, and their families have no faith in domestic accountability processes so international mechanisms are all that are left and many are also losing faith in those as well. It is critical that the international community relentlessly pursues justice and accountability in Sri Lanka.

In the face of domestic resistance, should the international community take a tougher stance to press for justice for the families of the forcibly disappeared?

The forthcoming session of the UN Human Rights Council is an important opportunity to press for justice for the families of the disappeared internationally. Truth, justice and accountability for enforced disappearances should be considered a crucial pillar of the necessary human rights measures which ought to form the foundation of Sri Lanka’s economic recovery. That being said, the international community should be taking a far tougher stance on this issue regardless of the domestic political and economic situation in the country. The situation for these families is becoming more and more desperate; every month, we hear of another parent who has died without knowing the fate of their children. The mothers of the disappeared, despite all the chaos in Colombo, have not wavered in their demands; for too long, the UN and foreign governments have not paid enough attention.

Some images from protests and memorials by photographer Kumanan Kanapathippillai

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