International Investigation Into Sri Lanka’s Enforced Disappearances Only Chance For Justice

Sri Lanka has the second-highest number of enforced disappearances in the world, with an alleged backlog of between 60,000 and 100,000 disappearances since the late 1980s. Between 2005 and 2015, thousands of people, mostly ethnic Tamils, were forcibly disappeared in state custody. This took place at a time when the current president, Gotabaya Rajapaksa, was defence secretary and his brother, current Prime Minister Mahinda Rajapaksa, was president. To date, Sri Lanka’s domestic processes have persistently and manifestly failed thousands of victims and their families, which has further fuelled the demand for an international inquiry by the United Nations

ENFORCED DISAPPEARANCE IN SRI LANKA 

According to article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance, “enforced disappearance” is the arrest, detention, abduction, or any other form of deprivation of liberty by the State, followed by a refusal to acknowledge the deprivation of liberty or whereabouts of the disappeared person, which place such a person outside the protection of the law.

Enforced disappearance is frequently used as a strategy to spread terror within society and is criminalised under article 7 of the Rome Statute as a crime against humanity. Under international law and standards, allegations of enforced disappearances and extrajudicial killings must be investigated, promptly, thoroughly and impartially. Those responsible must be brought to justice in fair trials, and the victims and their families are entitled to effective remedy and reparation.

UN reports from 2011 found credible allegations of enforced disappearances by Sri Lankan government forces, of captured Liberation Tigers of Tamil Eelam (LTTE) fighters and Tamil civilians during the final months of the Sri Lankan armed conflict in 2009. At least some of those who had surrendered to the Sri Lankan military at the end of the armed struggle remain unaccounted for to date, and many cases remain unresolved.

Among the army units that the UN implicated in the worst atrocities at the war’s end were those commanded by the current army chief, General Shavendra Silva, and the defence secretary, Gen. Kamal Gunaratne. The perpetrators of the war crimes and enforced disappearances continue to evade investigations and prosecutions to date.

THE OFFICE OF MISSING PERSONS

 The Office of Missing persons (OMP) was set up by the Sirisena government in August 2016 as a method of ensuring transitional justice. The aim of the OMP was to locate the thousands of missing persons as part of Sri Lanka’s commitment to the UN Human Rights Council (UNHRC) to promote “reconciliation, accountability and human rights” under Resolution 30/1. Notwithstanding these promises and the OMP’s mandate, the Office has continuously been futile in its attempts, for a number of reasons.

 Firstly, the OMP “rests precariously within a state structure that has long been accustomed to maintaining a studious silence or issuing blanket denials on the issue of enforced disappearances,” even where credible evidence of crimes under international law and human rights violations exists. President Rajapaksa has resisted demands for justice, including past Sri Lankan commitments to the UNHRC. At a recent meeting with the UN, President Rajapaksa stated that the “missing persons are actually dead”, without any credible investigations having been undertaken into the cases of those who have gone missing during the armed conflict.

 Secondly, families of the disappeared have repeatedly affirmed they have no trust in the OMP and accuse it of being another government strategy to divert attention away from international justice processes. Many of the Tamil families of the disappeared have slammed the OMP as yet another government commission that fails to bring about any tangible outcome or answers to their questions.

 Thirdly, since President Rajapaksa’s election in November 2019, families of the disappeared and lawyers acting on their behalf continue to face intensified surveillance, as well as “threats and harassment from the authorities and from non-state actors”. A notable example relates to threats received by Achala Senevirathna, a lawyer who was representing relatives of 11 young men who were allegedly forcibly disappeared by a group of officers of the Sri Lankan Navy in 2008 and 2009. The present Rajapaksa administration later halted the legal proceedings initiated by the previous government against the navy officers.

 Fourthly, relatives of the disappeared are not willing to accept the derisory relief payments from the OMP. Under the previous administration, and on the recommendation of the OMP, a limited number of affected families received merely LKR 6,000 (approximately 27 EUR) per month as a living allowance to compensate for the straitened circumstances they have endured with the disappearance of their relatives. Many of the disappeared were the main income earners in their families. There was no explanation provided on how the sum was arrived at, nor whether it is inflation indexed or linked to the minimum wage. The relief payments fail to consider the considerable sums of money that the relatives have spent in their years-long search for answers.

 On New Year’s Day 2020, families of the disappeared marked 1414 days of protest, demanding an international investigation into the whereabouts of their loved ones. 78 parents of the disappeared have died since the protests began without knowing the fate of their loved ones. Numerous activist and rights organisations have appealed to the international community to refer Sri Lanka to the International Criminal Court (ICC) ahead of the upcoming 46th UNHRC session in Geneva from 22 February to 23 March 2021.

 However, Tamil MPs and rights groups have expressed discontent at yet another “disappointing” draft report from the Core-Group on Sri Lanka for UNHRC. Criticisms include its failure to acknowledge the recommendations outlined in the UN High Commissioner's report which called on member states to consider “asset freezes and travel bans” on Sri Lankan officials accused of human rights abuses and consider “steps towards the referral of the situation in Sri Lanka to the International Criminal Court".

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Mithurja is currently a BPTC Student at City University. She was born and raised in Germany into a Sri Lankan family. She grew up seeing the horrors of the Sri Lankan Civil War on the news and feeling the need to fight such injustices worldwide. She has an LLB from Kingston University and is interested in practising at the Bar of England and Wales. Her interests revolve around international criminal law human rights laws. Mithurja represented the UK at the international rounds at the ICC in the ICC Moot Court Competition 2019.

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