“Slow
Steps Towards Truth and Justice: Exhumation of Mass Graves”
Human Rights Solidarity, August 1999 Vol. 9, No. 8.
www.ahrchk.net//solidarity/199908/v98_04.htm
“A
Recent report of the UN Commission on Human Rights put Sri Lanka second
after Iraq on a list of countries where people have ‘disappeared’ in
armed conflict. While Iraq cannot account for 16,248 citizens, Sri Lanka
has 12,108 missing people.”
“Forced
Disappearances in Sri Lanka constitute a Crime Against Humanity”
Paper by Harvard Law Graduate Laura Black
www.disappearances.org/articles/srilanka/lkart9.html
“For
an action to constitute a crime against humanity, several requirements
must be met: it must be one of a limited number of crimes generally
considered to warrant the label; it must be widespread or systematic in
nature; and it must involve the government. The crimes against humanity
enumerated in international instruments include murder, torture,
enforced disappearance, extermination, arbitrary imprisonment, and
persecution on political grounds. Each of these crimes was committed in
Sri Lanka. Mass graves, torture chambers, illegal detention centers,
testimony from the families of thousands of missing persons, and the
government’s goal of removing political opposition testify to it.
Despite the seriousness of the
crimes and the enormous number of victims, these crimes against humanity
have not been effectively addressed. The entire legal system was used in
the campaign of disappearances making internal prosecution impossible
despite the efforts of the new government. The fact-finding commissions
established by the government have uncovered information on appalling
atrocities, but little action has been taken. Similarly, the
interventions that UN agencies have made thus far have proven
insufficient. More decisive action is required.
To address these crimes effectively,
an international tribunal must be established. Both the seriousness and
the number of offenses warrant such an approach. Recently, the
International War Crimes Tribunal in The Hague sentenced a former
Bosnian Croat general to 45 years in prison for the deaths of 100
people. The deaths of 30,000 Sri Lankans are no less valuable. Only with
greater international assistance, preferably in the form of establishing
an international tribunal, can the perpetrators be brought to justice
and a sense of law and order restored in Sri Lanka.”
“III. Forced disappearances in Sri Lanka constitute
a crime against humanity
The police and army came for the
victims not only at night, but at any time of the day.[2]
Sometimes, the victims were abducted by men who came in unmarked cars
and acted with impunity. Sometimes, the victims were arrested for
questioning and subsequently disappeared, what may be called
“voluntary removal.” In the town of Trincomalee, residents were told
to report to a stadium one morning, and police then picked certain
persons out of the crowd, blind-folded them, and transported to Plantain
Point Army Camp. One victim who was released told of the torture; other
victims were never heard from again, despite inquiries by their
families. [3]
As this example illustrates, the
victims in Sri Lanka were not only abducted, but were normally murdered
and often tortured as well. A commission established Sri Lanka stated,
“Disappearance is in our finding only a euphemism for a killing, a
reality that the absence of recovery of the body should not be allowed
to obscure.” [4] In fact, death
certificates have been issued for persons where the Commission has been
satisfied that they had been involuntarily removed, and compensation has
been paid to the victims’ families.[5]
Many of the bodies have been recovered, however, in over a dozen mass graves.[6]
There have also been instances of mass executions. A well-known instance
is the massacre at Mahawatte, Kandy, where at least 54 persons were
killed in one night.
Many of the bodies showed signs of
torture. In some cases, the government sought to have the fact of
torture be common knowledge. Disfigured heads and bodies were displayed
openly to serve as a warning to the public. Such atrocities became
commonplace.[7] The existence of
at least eight such torture chambers was discovered by a Commission
investigating disappearances in four provinces.[8]
At a torture chamber at St. Sylvester’s College in Kandy, evidence
showed that about 1,000 persons were detained in this camp and
systematically tortured before being taken away and killed.[9]
These acts of violence were
perpetrated on the authority of the government, and involved the entire
legal enforcement machinery. Leading politicians, such as a Chief
Minister of a Province and a Cabinet member on the government, have been
named as playing a part in removals.[13]
Two senior officials, one from the police and one from the army, have
testified under oath of the role played by politicians of the governing
party preparing “lists” of names for executions.[14]
A Commission established by the government stated that it was of the
opinion that the disappearances/killings of these persons have been with
the knowledge and tacit approval of the Government in power at that
time.[15]
The widespread government
involvement can be seen in the impunity with which the police acted, and
the existence of multiple illegal detention and torture centers. The
abductions often occurred during the day with men taking victims away in
unmarked cars. Mourning families filed missing person reports and made
personal pleas at the homes of government officials for information on
their loved ones, all to no avail. One father stated, “I went to the
police 76 times, but we were driven away like dogs.”[16]
Cases of disappearances were dismissed without criminal investigation.[17]”
“c. The crime of enforced disappearance
Enforced disappearance, which forms
the basis of the charges against the Sri Lankan officials, is also a
crime against humanity and is defined as such in several international
instruments. These include the Resolution on Rwanda,[42]
the Statute of the International Criminal Court;[43]
and the Draft Code of Crimes Against the Peace and Security of Mankind.[44]
The Statute Of the International Criminal Court provides a definition,
which is rather standard, for “enforced disappearance”:
[T]he arrest, detention or abduction
of persons by, or with the authorization, support or acquiescence of, a
State or political organization, followed by a refusal to acknowledge
the deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing them from
the protection of the law for a prolonged period of time.[45]
The disappearances in Sri Lanka
clearly meet these conditions. The victims were either abducted and
detained, or arrested for questioning and then detained. Authorization
and support came from several levels of the government. Families
inquired about missing persons, but the police and government officials
normally refused to acknowledge the abductions and always withheld
information on their circumstances. The victims were also removed from
the protection of law for prolonged periods of time, usually forever, in
fact.”
“Implementation of the Recommendations of the UN
Working Group on Enforced or Involuntary Disappearances following their
visits to Sri Lanka in 1991 and 1992”
Amnesty International document
www.derechos.org/saran/lanka/des.html
“Background
to the visits to Sri Lanka
By the late 1980s, “disappearances” and extrajudicial
executions had reached alarming proportions in Sri Lanka, after several
years of increasing numbers of people falling victim to these gross
human rights violations. By 1991, the Working Group on Enforced or
Involuntary Disappearances (WGEID) had transmitted 4,932 cases of
“disappearances” to the Government of Sri Lanka and had received
reports from various reliable sources about approximately further 9,000
cases that had not yet been processed. The cases occurred in the context
of two major conflicts in the country: the confrontation between
government forces and Tamil armed groups, specially the Liberation
Tigers of Tamil Eelam (LTTE), fighting for an independent state,
“Eelam”, in the north and east of the country, and the confrontation
between government forces and the Janatha Vimukthi Peramuna (JVP, United
People’s Front), a revolutionary Marxist party which derived much of
its support from young people in the south of Sri Lanka. The JVP
attempted to overthrow the government in the late 1980s.
After [it’s two] visits [to the
country], the WGEID emphasized the valuable cooperation it had received
from the Government of Sri Lanka. However, in the report on its visit in
1992, it also stated that, even though the government had accepted the
WGEID’s earlier recommendations and the number of “disappearances”
had declined dramatically in the interim period, few of its
recommendations had actually been implemented and “disappearances”
persisted in Sri Lanka at a level that should be of serious concern to
the Commission.
Developments since 1994
In August 1994, the People’s
Alliance (PA), a coalition of parties headed by the Sri Lanka Freedom
Party, won the parliamentary elections and formed a government together
with the Sri Lanka Muslim Congress party, bringing an end to 17 years of
government by the United National Party. The leader of the PA, Chandrika
Bandaranaike Kumaratunga, was sworn in as President after winning
presidential elections in November 1994. The new government pledged to
improve the human rights situation in the country and to investigate
past incidents of human rights violations. In late 1994, it set up three
Presidential commissions to investigate past human rights violations,
including thousands of “disappearances”, since 1 January 1988. The
government said it would bring to justice the perpetrators of these past
violations. It also announced its intention to strengthen the
constitutional protection of human rights. In addition, in 1997, it
ratified the Optional Protocol to the International Covenant on Civil
and Political Rights and established a permanent national Human Rights
Commission (HRC) with a mandate to investigate human rights violations,
including “disappearances”.
Despite these measures taken in
relation to past “disappearances” and the institution building
measures as described above, “disappearances” continued to be
reported at high levels, particularly after the armed conflict between
the security forces and the LTTE resumed in April 1995. In 1995, 55
cases of “disappearances” were reported, particularly from the east
of the country and from the capital, Colombo. In 1996, after the army
regained control over the northern Jaffna peninsula from the LTTE, an
estimated 600 “disappearances” were reported from that area of the
country. During 1997, approximately 100 cases of “disappearances”
were reported, mainly from Jaffna, Batticaloa, Mannar and Kilinochchi.
Sri Lanka is at a crucial juncture
in dealing with its experience of “disappearances” in the past and
putting an end once and for all to this pernicious and persistent
violation that has for so long wracked the lives of so many people. The
current Sri Lankan Government has taken some positive steps since coming
to power in 1994 to provide redress and prevent “disappearances”
occurring in the first place. But, as indicated by the approximately 600
cases of “disappearances” reported from Jaffna during 1996, which
represents the highest level of “disappearances” reported since
1991, the country is still prone to upsurges of widespread human rights
violations, particularly “disappearances”. The government must
tackle the root causes underpinning the continuation of these
violations: the lingering sense of impunity among the security forces
and the sweeping powers of the Emergency Regulations (ERs) and the
Prevention of Terrorism Act (PTA) allowing for people to be detained
incommunicado for long periods of time. “
“55th Session on UN Commission on Human Rights:
What Difference Could It Make on Disappearances Issue?”
Human Rights Solidarity, April 1999 Vol 9, No.
4.
www.ahrchk.net//solidarity/199904/v94_05.htm
“In brief, the findings of the
commissions are:
