Three commissions created by the Sri Lankan government have established the disappearances of 16,742 people. While the claim that the number of disappearances are much larger needs to be further investigated, the immediate issue now is what conclusions can be drawn from the facts already established.
It should be underlined that those who have disappeared in the ommission reports do not include people killed by the rebel groups. The disappeared are only the people who have been arrested by the law enforcement agencies and went missing thereafter. Thus, the issue is entirely one of the responsibility of state officers, even if some state agencies sometimes may have used people who did not belong to their agencies to carry out the disappearances.
The approach proposed by the government thus far is only to prosecute the people responsible for the disappearances – a large number who have been identified – according to a government statement issued in early September.
Even if many involved people are identified, however, it would be a fraction of those who have caused the disappearances of 16,742 people, for the approach presently adopted has treated criminal involvement too narrowly it only involves those directly responsible for the disappearances using direct criminal liability as the sole basis of liability.
A very important aspect though that needs to be considered is implied liability on the basis of the vast number of proven cases of disappearances. Implied liability arises from acts of commission which have contributed to the causation of these disappearances and acts of omission to prevent the occurrences of disappearances. The responsibility for acts of commission as well as omission rests primarily on the government of the time. The government of the time cannot claim any valid defence in this regard as causing the disappearances or failure to prevent the disappearances cannot be justified in any way. Even in an insurgency, causing disappearances is not a legally valid combat tactic.
In addition to the government’s criminal liability that arises solely from the act of the disappearances themselves, there are other factors adding to the gravity of these cases, such as the conspiracy to cause these disappearances, acts of encouragement to cause these disappearances, acts of supervision of the process of carrying out these disappearances and acts of failure to divulge information regarding these disappearances. Thus, the liability for these disappearances would spread to the leaders of the former government, the regional leaders of the former government, higher officers of the law enforcement agencies and the higher regional officers of the areas where the disappearances have taken place.
The primary consideration in dealing with these disappearances should be to create a political and social agreement to avoid the occurrence of disappearances in the future. This is even more urgent as there are complaints of about 600 missing people on the Jaffna Peninsula since its capture by government forces in December 1995.
It is not possible to restore confidence in the State’s willingness as well as determination to control its law enforcement agencies without taking serious action against the large numbers of disappearances that have been established.
Furthermore, the law enforcement officers themselves need to be convinced of their criminal liability. However, law enforcement officers could claim that they have been unfairly treated if the politicians who were the architects of the policy that caused these disappearances are immune to criminal liability.
The public has a right to know the complete details of how such a vast number of disappearances took place in the country. Among them are the surviving members of the families of those who disappeared. Full disclosure of the entire process may help society, particularly those directly concerned, to feel that justice has been done at last and that the justice system may recover from the deep decline it has been suffering because of the disappearances.
Whether the suitable mode of justice in this instance is one of direct criminal trials or one similar to the Truth Commission in South Africa is left for the present government to decide in consultation with the people. Revenge is not the driving force for such prosecutions. Justice against gross injustice, recreating confidence in the system of justice and helping people and society arrive at genuine reconciliation are the primary considerations.
RECOMMENDED ACTION: To assist the people of Sri Lanka in this process, you are encouraged to write letters to the government of Sri Lanka and the U.N. Rapporteur on Enforced and Involuntary Disappearances to take urgent action on this matter. If you would like, you may use the sample letters below or similar letters to the following addresses
Her Excellency President Chandrika B. Kumaratunga, Presidential Residence, Temple Trees, Colombo 3, Sri Lanka. Fax (94) 1-333-703
We have learned of the findings of three commissions of inquiry into the disappearances which have taken place in your country. We are shocked to hear that 16,742 people have disappeared and the claim by other agencies that the number is, in fact, much larger. While we have been saddened by such a large number of gross acts of inhumanity, we are concerned about further complaints of disappearances which have happened in recent times. We would request that action be taken on the basis of the reports of these commissions to bring to justice all who have been involved in causing these disappearances. We hope by genuinely redressing the grave wrong done to these people and their families that peace can be restored to your country.
Mr. Ivan Tosevski, Chairperson/Rapporteur, U.N. Working Group on Enforced and Involuntary Disappearances, c\\o U.N. Centrefor Human Rights, Palais des Nations, 1211 Geneva 10, Switzerland. Fax (41) 22-917-0092
Ms. Mary Robinson, United Nations High Commissioner for Human Rights, Palais des Nations, 1211 Geneva 10, Switzerland. Telephone (41) 22-734-6011, 731-0211; Fax (41) 22-733-9879; Fax (41) 22-917-0022 (HOTLINE-Human Rights)
Dear Mr. Tosevski/Ms. Robinson,
You are aware of the findings of the three commissions in Sri Lanka which have established the disappearance of 16,472 people. We urge you to take suitable action to bring to justice all of the people who were involved in these actions.