There is still a possibility to make it an institution that can provide some degree of truth, justice and reparations to families of disappeared.
A few days ago I was with Mauri Inoka, whose husband disappeared in September 2013. She was protesting on the pavement of a major road in Colombo, close to the presidential secretariat, sweltering in the heat, with her twin children, aged about two-and-half years, born just two months after their father disappeared. The children seemed tired, hungry and thirsty, and cried most of the time. Their mother tried to console them and spoke with determination to the media personnel interviewing her, while the policemen tried to make her give up the protest. But later, after being compelled to talk to the same officials who had made empty promises at the presidential secretariat one year ago, and after the journalists and police left, Inoka also broke down and cried.
Inoka claims that the police are complicit or have information about her husband’s disappearance. Her complaints to the police, Human Rights Commission of Sri Lanka, and the former and present president have not yielded any answers for 1,010 days. She almost lost her job. They were often scared, homeless, hungry, displaced by floods and dependent on the occasional support that a few family members, friends, and activists could offer. Inoka was threatened several times not to pursue the case of her husband’s disappearance and was also abducted and dumped on the roadside.
In the late 1980s, most of those disappeared were Sinhalese, like Inoka’s husband. Since then, the majority of those who disappeared have been Tamils. Muslims also have disappeared, such as my friend and colleague Pattani Razeek. Razeek was one of the few whose body was found after he disappeared. Some suspects have been arrested, but his family believes the master minds are free and no one has been charged. Razeek’s son regularly calls me seeking help to ensure justice for his father.
In August 2006, Father Jim Brown, a Tamil Catholic priest and his assistant, Vimalathas disappeared. They had gone into a navy held area, after signing in at a navy checkpoint in Allaipiddy, Jaffna. Brown had offered shelter to people in his church to save them from bombs and shells, during heavy fighting but many civilians were killed and injured inside the church. Brown survived and had later pleaded with the navy to take the injured out of the fighting zone. He was reportedly threatened by a navy officer, and there were reports that the navy had refused orders of the magistrate to hand over the log book at the checkpoint.
They are amongst the 65,000 Sri Lankans reported to have disappeared. In the 36 year old history of the UN’s working group on disappearances, it’s the second largest case from Sri Lanka.
Eyewitness testimonies and other available evidence indicate that the Sri Lankan state – particularly its army, navy and police may be responsible for most disappearances, in the context of counter-terrorism operations mainly. The evidence also indicates that the Liberation Tigers of Tamil Eelam (LTTE) is also responsible for many disappearances, especially during the last stages of the war.
Ironically, amongst the families of the disappeared that I have worked with, is a mother of an air force officer who had gone missing and a wife of a LTTE leader who had disappeared after surrendering to the army, along with hundreds of other LTTE leaders. About 5,000 soldiers from the Sri Lankan armed forces are also believed to be missing in action.
Families of the disappeared and the activists have faced numerous threats, intimidation, restrictions, surveillance, arrests and detention as they campaigned for truth and justice for the disappeared. In December 2011, Lalith and Kugan, campaigners against the disappearances, disappeared. In March 2014, Jeyakumary, a Tamil mother seeking truth and justice for her son, whose photo had been seen in a government-run rehabilitation facility, was arrested. A colleague and I were also arrested when we went to investigate it. All three of us are still terrorist suspects with pending cases against us. In August 2014, when I was attending a private discussion between some families of the disappeared with lawyers, activists and diplomats, a mob led by Buddhist monks invaded the private church run building and disrupted the meeting. The police refused to intervene or provide protection. Families of the disappeared were stopped twice from coming to Colombo from the north to hand over petitions during the previous regime.
Successive government have set up many bodies to address disappearances, and families of the disappeared and activists have engaged with them, sometimes in good faith and sometimes in desperation. But truth, justice and reparations have been elusive.
A commitment the present government made through co-sponsoring the UN Human Rights Council resolution, was fulfilled last month with the ratification of the International convention against disappearances. The government, however, barred Sri Lankans from making complaints to the committee monitoring the implementation of the convention by not recognising article 31. Another commitment in the UN resolution was to establish an Office of Missing Persons (OMP). The commitment to enact a domestic law making disappearances a crime in Sri Lanka has not been fulfilled and there is no timeline for this, though it is crucial for disappearances to be criminalised before the OMP is established.
OMP as an institution
The OMP was one of the four focuses of the consultation task force appointed to conduct consultations on transitional justice. But instead of consulting people, the government relied on a secret process to come up with a draft bill to establish the OMP. After about eight months, almost at the end of the drafting process, the foreign ministry held a hastily convened de-briefing for few activists. Due to insistence of activists, another de-briefing for few families of the disappeared was held ten days later. Both were in Colombo. Four days later, the draft bill was approved by the cabinet. Technically, the bill can still be amended before it is passed into law by the parliament, but it seems unlikely that it will be changed substantially.
The draft bill is promising with concern to the right of the families to truth, with no restrictions on temporal or geographical restrictions, clauses guaranteeing anonymity for witnesses, opportunities for international expertise, powers to summon any person and obtain documents and other materials, make unannounced visits to relevant places, seek search warrants and court orders for exhumations. The office will also have branch offices.
The draft bill, however, doesn’t give the OMP prosecutorial authority and this may hamper the possibility to offer plea bargains, immunity in exceptional circumstances and other forms of incentives to elicit information.
The draft bill is vague. Gender and ethnic composition is not specified. There is no provision to include families of the disappeared in the most senior oversight body. There is no requirement for the appointing authorities to give time and opportunities to families of the disappeared and others to comment on nominees or make nominations. The regularity to provide information to families is not specified and it’s not obligatory to provide maximum information to families.
The right to pursue justice is compromised by the OMP not having prosecutorial authority and being given the discretion to share or not share information with the external prosecutorial and judicial bodies. There is no provision to ensure that tracing investigations will be done in tandem with criminal investigations or that the OMP will ensure information and evidence discovered will be treated with best international criminal investigation standards, to enable them to be admissible during any subsequent prosecutions.
Justice and aid
At the moment, there are no initiatives to ensure economic justice for the families or offer any financial and material assistance in the form of interim reparations. The right of the families to reparations has been relegated to an Office for Reparations, a totally separate entity, which is likely to take a long time to establish. Some of the families, whose breadwinners have disappeared, may not even be able to engage with the OMP because of extreme poverty.
Procedures and obligations to deal with identified or unidentified human remains are weak in the present draft bill. At the only opportunity they had before the cabinet approval, some families of the disappeared appealed to change the name from “missing” to “disappear”. But despite promises to consider it, the name remains unchanged.
The distraught mother of Brown passed away without knowing what happened to her son. His lonely and ageing father’s only hope is to hear news of his son before he dies. Inoka desperately needs support for housing, education and food for her children, so that she can continue her struggle for truth and justice. Many families don’t have adequate financial, emotional and legal support and accompaniment to strengthen their struggles. I have often struggled and ended up frustrated trying to mobilise support for families of the disappeared, amongst politicians, journalists, artists, lawyers, activists and the general public.
At least one person was abducted by the dreaded “White Van”, a symbol of disappearances in Sri Lanka, last April. He was later found in police custody. The discovery of explosives and suicide jacket near Jaffna had led to new wave of arrests of some Tamils from the north and east since the end of March, under the draconian and much abused Prevention of Terrorism Act, which the government has promised to repeal. Torture and lack of due process has been reported in relation to some of these arrests.
The above context, and lack of consultations and sensitivity to ideas of families of disappeared in creating the OMP and the limits in the draft bill has created an environment of suspicion about it. There is still a possibility to make the OMP an institution that can provide at least some degree of truth, justice and reparations to families of disappeared, rather than giving more agony and trauma. But it will require principled commitment from politicians, sensitivity of the general public and lot of work from families themselves and those supporting them.
Ruki Fernando is a Sri Lankan human rights activist who worked with families of the disappeared, and was involved in documentation, campaigns and advocacy in relation to the disappearances. He is a member of Watchdog Collective, Advisor to INFORM Human Rights Documentation Centre in Colombo.