B. Aloka Wanigasuriya joins JiC for this post on the ongoing injustice of missing persons in Sri Lanka. Aloka is an Australian lawyer and a PhD scholar at the Faculty of Law, University of Copenhagen (Denmark).

Sri Lankan mothers from the “Dead and Missing Person’s Parents” organisation holding photographs of their loved ones during a protest in Jaffna (Photo: AFP)

During Sri Lanka’s civil war and following its aftermath, many people disappeared. To this day, many still remain missing. 15 November 2019 marked 1000 days since family members of missing persons from the formerly war-ravaged north of Sri Lanka started protesting against the disappearances. The continuous roadside protests, held in five key locations across the island nation, Kilinochchi, Mullaithivu, Trincomalee, Vavuniya and Maruthankarny (Jaffna district), started in January 2017. Those protesting, seek detailed information regarding their missing loved ones and demand closure. However, their calls for answers seem to have fallen on deaf ears. Instead of providing them with answers, last week, the Sri Lankan president stated that their relatives were dead. Against this backdrop, this post outlines the general state of reports of disappearances that emerged during and following the civil war, steps taken in Sri Lanka to address the situation and a brief, final note on prospects for obtaining justice and answers.

The civil war in Sri Lanka, fought between Sri Lankan government forces and the guerrilla force, the Liberation Tigers of Tamil Eelam (LTTE), came to an end in May 2009. An estimated 20,000 individuals, many of whom belong to the minority Tamil ethnic group, are still missing. Most disappeared during and following the final stages of the war. Some were forcibly conscripted by the LTTE and have not been heard from since. Others disappeared throughout the 26-year-long civil war but well before the final military offensive too place. Stories abound of how some surrendered themselves to the security forces during the last stages of the war, never to be heard from or seen again.

One such incident relates to the Tamil Catholic priest, Father G.A. Francis Joseph who is said to have negotiated the surrender of over a 100 (some claim the number to be as high as 360) individuals (including LTTE members and young children) to the Sri Lankan military in Mullaitivu. They were last seen being driven away in military busses. They are still missing. Others are claimed to have been abducted by security forces before the civil war entered its final stages. During the formal screening process for internally displaces persons (IDPs), some were arrested by the authorities at military checkpoints for suspected LTTE membership. Family members believed they would be processed by the military and then returned back to their families. Some still believe that their relatives are alive and being held by the security forces. This blog post does not attempt to provide a comprehensive overview of all missing persons cases. However, the reality remains that a decade has elapsed since the end of the civil war with relatives having received little or no information regarding the whereabouts of the missing individuals or what happened to them.

Hopes were dashed last week when the newly elected Sri Lankan president Gotabaya Rajapaksa (the former controversial Sri Lankan defence secretary during the last phases of the civil war), stated that those who disappeared during the final stages of the war were dead. Rajapaksa has informed the United Nations Resident Coordinator Hanna Singer that his government would provide the necessary support to families of the missing persons. He has further contended that most of the missing individuals were either taken or forcibly conscripted by the LTTE. According to the president, following necessary investigations, death certificates would be issued for missing persons (indicating the end of the practice of issuing ‘certificates of absence’ for missing persons, which started in 2016).

During the weekend, many took to social media, declaring the president’s statement insufficient. Some see it as a way to bypass accountability and avoid investigations. Many demand an explanation as to how the missing persons perished and where their remains are located. Human rights activists had previously expressed similar views. For instance, the executive director of the Colombo-based Centre for Policy Alternatives, Dr. Pakiasothi Saravanamuthu, places emphasis on the quest for information regarding what happened to the missing persons.

Previously, families of some of the missing persons filed habeas corpus applications in Sri Lankan courts seeing information regarding the whereabouts of their loved ones. They have also met with senior government officials including the former Sri Lankan president (during his term in office), but to no avail.

Sri Lanka has a long history of establishing ad hoc bodies to investigate enforced disappearances. The first Presidential Commission to investigate reports of enforced disappearances was established in 1991. Since then, those seeking information regarding their loved ones have seen at least 10 such bodies being established. Despite their reports (some even identifying alleged perpetrators and calling for criminal investigations), little progress has been made.

Most notably, following the end of the civil war, former Sri Lankan president, Mahinda Rajapaksa established the Paranagama Commission (Presidential Commission to Investigate Complaints Regarding Missing Persons) on 15 August 2013. It had the mandate to investigate complaints regarding those affected by the armed conflict who had been abducted or disappeared from the Northern and Eastern provinces between 10 June 1990 and 19 May 2009. The Commission’s mandate was later expanded to also include alleged war crimes and its term extended until July 2016. The Commission released its report in August 2015, but both the Commission and its report have been criticized for major shortcomings.

Subsequently, in August 2016, the Sri Lankan Parliament passed the Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act (later amended by the Office on Missing Persons (Establishment, Administration and Discharge of Functions) (Amendment) Act, No. 9 of 2017). Section 27 of the Act defines missing persons as:

• persons who went missing in the context of the conflict which took place in the Northern and Eastern Provinces or its aftermath, or members of the armed forces or police who have been identified as ‘missing in action’,
• persons who went missing in connection with political unrest or civil disturbances,
• persons who disappeared under circumstances of enforced disappearances, as defined in the International Convention for the Protection of All Persons from Enforced Disappearances.

Human rights organizations criticized the government for failing to consult with victims and civil society or address their concerns, when drafting the Act. Eventually, the Office on Missing Persons (OMP) was set up and operationalized in 2018, with its mandate enabling it to probe disappearances that took place during and after the civil war.

In addition, Sri Lanka has seen the enacting of the International Convention for the Protection of All Persons from Enforced Disappearances Act No. 5 of 2018 (EDA). The EDA incorporates the obligations under the International Convention for the Protection of All Persons from Enforced Disappearances into domestic law. However, the national criminalization of enforced disappearances remains inadequate. The OMP’s August 2018 interim report criticized the EDA for:

• not including instances where some elements of the crime occurred prior to the enactment of the Act in the definition of ‘enforced disappearances’;
• not capturing the full range of potential perpetrators and full scope of command responsibility; and
• not recognizing enforced disappearances as a crime against humanity.

The report further acknowledges the polarized national context within which the OMP has to operate, with a large segment of the population questioning the need for addressing the issue of missing and disappeared persons. Regardless, the OMP’s report advocated the need for investigating and prosecuting enforced disappearances.

The OMP has been established, its Jaffna office opened on 24 August 2019, and two further offices opened in Mannar and Matara. However, victims’ rights groups have been skeptical and have criticized the OMP for being a largely watered down version of victims’ aspirations. Being the only functioning transitional justice mechanism that is currently in operation in Sri Lanka, these shortcomings pose significant issues for achieving justice. OMP chairman, Saliya Pieris, stresses that the OMP is an independent institution with more powers than previous commissions that can trace missing individuals regardless of who is behind their disappearances. However, the fact remains that the OMP has made little progress in the way of opening and concluding its investigations.

Family members of the missing reiterate, “Justice is what we want.” However, according to Sri Lankan human rights activist, Ruki Fernando, they have received few answers from government institutions in the past and OMP progress is lacking. Against this backdrop, he states that the “OMP needs to win trust by actions and not words, primarily by progress in tracing [the] fate[s] and whereabouts of at least [a] few disappeared persons”. Many family members of missing persons, especially from the North where the majority of missing persons are Tamil, call for an independent, international commission to probe the disappearances. However, Given the current political climate in Sri Lanka, where those who have been accused of allegedly committing international crimes during the civil war now being in power, the setting up of such a mechanism is highly unlikely.

As president Rajapaksa himself has previously stated, “We must forget the past and look to the future,”. However, forgetting is not an option for the families of the missing. Reports have recently emerged that the new Sri Lankan government intends to amend the Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act. On 15 January 2020, the OMP issued a media release regarding these claims. What the amendments would entail is still unclear. In the meantime, the search for loved ones continues, albeit limited progress. With the latest statement by the president, the prospects of obtaining any information about the fate of the missing persons appear to be bleak.