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Members of the families of those forcibly disappeared, distinguished guests, ladies and gentlemen...!

I would like to thank the organising committee for the invitation to deliver this speech on Enforced Disappearance from a Tamil perspective.

I will start with the story of a Tamil mother - Chandra. Her life changed forever just before midnight on 11^th of September 2008. Armed men broke into the house where her 24 year old son Jasinthan was sleeping and took him away in a white van. There is only one road leading to the area where she lives, and there is no way armed men could have taken away her son without the security forces knowing.

But for the last seven years, Chandra’s life has been spent searching for her son. This may sound futile after so many years, but she has good reason to believe that his son is still alive. Three years ago, she saw a video of him in the hospital with his front teeth smashed. In January this year, she recognised him among several men in a photograph showing detainees at Welikada Jail. And yet she still cannot locate him. She lives in limbo and says if he had died, it would have been easier to accept than this.

Chandra has been forced to run from post to pillar looking for her son – she’s been entirely at the mercy of the security forces and police. She is exhausted from visiting all the military camps and police stations in Mannar. As a Tamil woman, she was treated with utter disrespect by this country’s armed forces. A soldier even asked her to sleep with him so that he could help her find her son, and this is not an isolated incident. Young wives who go to military camps looking for their husbands often report sexual violence at the hands of soldiers – compounding their tragedy.

I realise that the current minister of foreign affairs is one of a few government officials who acknowledged the Government’s responsibility for disappearances. In his letter to the then President in early February 2007 you noted that “ a person is abducted every five hours” in Sri Lanka and that “no matter who does it, as a government, we are responsible for it”[1]. The International Truth and Justice Project of Sri Lanka led by Yasmin Sooka documented several instances of enforced disappearances being a continuing phenomenon under your Government. We urge you to translate your words in opposition to action while in Government. There are many like Chandra who have been made to believe that things will be different under your Government. We urge you to act before all hope is again let to go waste.

Enforced Disappearance as a counter-insurgency tool

Enforced disappearance is identified in the scholarly literature as a means to eliminate opponents and spread terror among the population’[2]. As you are aware, the phenomenon of enforced disappearance has affected tens of thousands of individuals, their families and entire communities. Both Sinhalese and Tamils have had to bear the brunt of this government strategy, which has devastated families like Chandra’s and their communities. Enforced disappearance, according to the Office of the High Commissioner for Human Rights inquiry on Sri Lanka (the OISL report)- “has been used by consecutive governments to target those perceived as critical of the Government, supportive of the opposition movements or involved in armed conflict”[3]. Enforced disappearances in particular against the Tamils has been used as a tool to suppress voices demanding self-determination, who have questioned war crimes, crimes against humanity and the genocide of the Tamils. It is one of the counter-insurgency tools that was deployed by successive Governments to eliminate different layers of leadership amongst the Tamils by which it was hoped to weaken their political resolve for a political fairness and justice.

The OISL report suggests that most of the cases of enforced disappearance occurred in the Northern Province-in the districts of Mannar, Jaffna and Vavuniya, all under strict military control and the second most affected region was the Eastern Province. There are cases reported in Colombo, but most of the victims there originate from the North and East of Sri Lanka.[4]

Patterns of enforced disappearance

‘Enforced Disappearance is designed to leave little evidence linking state officials to the abduction and subsequent torture or killing. Disappearances carried out by different units, be it security forces or police, the perpetrators did not identify themselves and always denied having committed such acts as quite often there was no witness to the act thus presenting a difficult problem of proof. Even when they knew the identity of the perpetrators, witnesses are reluctant to come forward for fear of reprisals. The OISL report finds that “the manner in which the arrests were carried out is consistent”[5] and represents a pattern. Often the abduction/s were carried out by the ‘white van without licence plates’, and the perpetrators quite often would speak Sinhala or broken Sinhala or Tamil and wore plainclothes or covered their faces, in some cases the perpetrators identified themselves as CID or TID.

OISL further reports that “the perpetrators systematically failed to provide a formal arrest warrant or any information about where they were taking the victim, and later the security forces or police denied that the person was in their custody”[6] – as family members like Chandra will know. The climate of impunity that prevails in Sri Lanka became the supportive mechanism which assured the perpetrators never apprehended.

The victims who were disappeared received visits, were threatened, received anonymous calls, were questioned or harassed before they disappeared or they disappeared after a search operation.

The paramilitary groups, especially EPDP in Jaffna after the capture of the Jaffna peninsula in 1996 and the Karuna group after 2004 in the East, carried out enforced disappearances in collusion with the state.

This practise of enforced disappearance created ‘terror’ that led “society as whole to live in a climate of physical and psychological submission to the benefit of those who, while violating the most basic laws of human coexistence, enjoyed a condition of total impunity”[7].

In most of the cases, the bodies of the victims were not available, and they were destroyed by the perpetrators, thus leaving open to speculation whether or not the person disappeared is still alive[8].

At the end of the armed conflict a significant number of LTTE cadres who laid down their arms, LTTE administrative cadres, their associates and family members, surrendered on 18^th of May 2009 at Vadduvahal bridge and disappeared. This includes the case of an elderly Tamil Catholic priest Father Francis who led the surrender. A significant number of LTTE cadres surrendered at Omanthai and inside Menik Farm. There have been many cases where mothers, parents and wives, handed their loved ones to the security forces and have not seen them since...

Enforced disappearance as a Crime against Humanity and a possible ingredient of the crime of genocide

Article 7 (1) (i) of the ICC Rome statute defines “‘Crime against humanity’ as any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:”[9] Enforced disappearance of persons is recognised as a crime against humanity.

The elements of the above crime are listed as follows:

• The perpetrator who arrested, detained or abducted one or more persons
• Refused to acknowledge the arrest, which resulted in not providing any information on the fate of the arrested accompanied by deprivation of freedom.
• The perpetrator was aware that such an act would result in deprivation of freedom.
• Such arrest was carried out by, or with the authorisation, support of a state.
• Refusal to acknowledge that deprivation of freedom was carried out by, or with the authorisation of a state.
• The perpetrator intended to remove such person from the protections of the law for a prolonged period of time.
• The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
• The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.[10]

The Inter-American Court has also unequivocally ruled that enforced disappearance is a crime against humanity[11]. The ICTY has clarified that even an isolated act can constitute a crime against humanity if it is the product of a political system based on terror or prosecution”[12].

Hence any attempt to treat violations as isolated incidents, as the Paranagama commission implies is grossly wrong and even if it is such it may still amount to a crime against humanity. Prof. Phillipe Sands[13] of University College London appearing before the ICJ in the Bosnian Genocide case argued that psychological trauma caused to families of prolonged disappearance might form part of the elements needed to prove genocide.

Any accountability process undertaken by the present Government needs to treat enforced disappearance as a crime against humanity and as an ingredient of the crime of genocide.

Conclusion

In Conclusion, may I reiterate that the commissions that have been appointed to look into enforced disappearance in Sri Lanka have tried to suggest a few individuals as being responsible, but we wish to reiterate that the nature of the crimes perpetrated in Sri Lanka by the state against the Tamil civilian population is widespread and systematic and this demands justice under international human rights and criminal law.

So far all the commissions appointed to look into the issue of enforced disappearance have failed not just to the lack of capacity but more importantly due to the lack of political will on the part of consecutive governments. Mothers like Chandra have testified to every commission and inquiry, but their questions have not been put to rest. This is why this crime needs to be investigated under international criminal law by a system deemed to be credible by the victims.

In this regard, I wish to suggest the following steps be taken by the Government if it is truly interested in addressing the issue :

• Immediately publish a list of all detainees held in prisons
• Identify and publicise the existence of any secret prisons/ camps and detainees held in such illegal prisons/camps
• Provide access to representatives of families of those affected by enforced disappearances along with the ICRC and their lawyers
• Establish the office of missing persons with direct participation and representation of the victims’ families.
• Publicise the list of LTTE carders who surrendered or were made to surrender to the SL Army and their current status
• Release or charge political prisoners with an expedited trial releasing all held under the PTA on bail.
• Publicly acknowledge all those killed in custody, apologise and pay reparations
• Legislate war crimes, crimes against humanity and genocide as crimes recognised by the penal jurisdiction with retro-active jurisdiction.
• Identify those who were responsible for the crime of enforced disappearances and extrajudicial killings and prosecute them.
• Come out with an honest and truthful take on what the Government agreed to do under the UNHRC resolution by becoming a co-signatory.
• Set up the mechanism that is deemed credible by victims for prosecutions of all those responsible for crimes committed including the entirety of the chain of command. 

Footnotes:

[1]Foreign Minister exposes the corruption of Government, The Sunday Leader, 28^th February 2007, undefined, accessed on 25^th October 2015

[2]Scivazzi & Citroni, p. 7

[3]Report of the OHCHR on Sri Lanka (OISL), 16^th September 2015, p.84

[4]Ibid., p. 85

[5]OISL., p. 86

[6]OISL., p.87

[7]Scovazzi & Citroni, p.8

[8]Fracisco Forrest Martin (ed), International Human Rights & Humanitarian Law: Treatises, Cases & Analysis, (Cambridge Press 2006), p. 364

[9]F.F. Martin, p.475

[10]Scovazzi & Citroni, p. 274-275

[11]IACHR., Case 19 (judgment of 5July 2004) para. 142

[12]ICTY, Tadic (judgment 7^th May 1997), para 623

[13]A third area where the ICJ seems to have made some interesting statements is in relation to the link between enforced disappearances and genocide. Indeed, Croatia claimed that “causing serious mental harm to members of the groups” includes (judgment, §159):

the psychological suffering caused to their surviving relatives by the disappearance of members of the group. [Croatia] thus argues that Article II (b) has been the subject of a continuing breach in the present case, since insufficient action has been initiated by Serbia to ascertain the fate of individuals having disappeared during the events cited in support of the principal claim.

In response to this, the ICJ said that:

In the Court’s view, the persistent refusal of the competent authorities to provide relatives of individuals who disappeared in the context of an alleged genocide with information in their possession, which would enable the relatives to establish with certainty whether those individuals are dead, and if so, how they died, is capable of causing psychological suffering. The Court concludes, however, that, to fall within Article II (b) of the Convention, the harm resulting from that suffering must be such as to contribute to the physical or biological destruction of the group, in whole or in part.

- Rev. Fr. Elil Rajendram SJ

(This article was originally published in Fortnightly Magazine 'Abel', August 2020)

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