Sri Lanka: Victims of disappearance cannot wait any longer for justice

Sri Lanka will not break with its violent past until it reckons with the cruel history of enforced disappearance and delivers justice to as many as 100,000 families who have spent years waiting for it, Amnesty International said today in a new report, revealing the enduring scars of a conflict that has been forgotten by the world.

Amnesty International’s report, “Only Justice can heal our wounds”, will be launched by the organization’s Secretary General Salil Shetty at a meeting with families of the disappeared in the northern Sri Lankan town of Mannar.

The report tells the story of relatives, many of them women, who have spent years searching for truth and justice. Obstructed at every turn, they have been misled about the whereabouts or fate of their disappeared relatives, subjected to threats, smears and intimidation, and suffered the indignity of delayed trials and a stalled truth and justice processes.

“There is no community in Sri Lanka that remains untouched by the trauma of enforced disappearance. Most people in the country suffer the absence of a loved one or know someone who does. They have waited years, and in some cases, decades, to learn of the fate of their relatives. Until justice is delivered to these victims, the country cannot begin to heal, let alone move towards a more promising future,” said Salil Shetty, Amnesty International’s Secretary General.

Despite international commitments to end impunity for enforced disappearance, which may amount to crimes against humanity where they have been widespread and systematic, the authorities have failed to investigate these cases, identify the whereabouts or fate of the victim, or prosecute those suspected of the crimes.

A major driver of enforced disappearances has been like Sri Lanka’s notorious Prevention of Terrorism Act (PTA). Enabling incommunicado and secret detention, the PTA places people outside the law and leaves them vulnerable to human rights violations including torture and enforced disappearances.

“Sri Lanka needs to put the victims at the heart of any reconciliation process. The authorities must hear their demands and implement them. The current government has taken encouraging steps to acknowledge the need to end impunity, but it cannot leave the victims waiting any longer. They have waited too long already. If Sri Lanka wants to successfully pull away from its violent past, it must address victims’ demands for justice, truth, reparation and guarantees of non-recurrence,” said Salil Shetty.

A relentless search for justice

One of the cases detailed in the report is of Sandya Eknaligoda, whose husband, Prageeth, left his on 24 January 2010 and never returned. Prageeth Eknaligoda was a political cartoonist, known for his efforts to expose corruption and human rights abuses by the government then in power.

Sandya Eknaligoda’s perseverance has led to some evidence being uncovered which indicates that military intelligence personnel may have been involved in her husband’s disappearance. Since she filed a complaint, she has been to court at least 90 times. Each time she appears, she faces the prospect of harassment. She told Amnesty International that last year, a prominent member of the Buddhist national Bodhu Bala Sena and other monks stormed the court at Homagama and threatened her. The same group has smeared her as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) in posters.

In 2011, the former attorney general told the UN Committee Against Torture that her husband had not been abducted but had fled the country. When confronted about the claim in court, the former attorney general said that his memory had failed him, forgetting where the claim came from.

Sandya has pressed on with her campaign, writing repeatedly to Sri Lankan leaders, handing out appeals in front of Parliament, organizing vigils, and emboldening other wives of the disappeared to raise their voices and join her demand for justice. Taking her case to the UN Human Rights Council, she has forced slow progress. In 2015, an investigation revealed that Prageeth had been held at army camps. But the process has stalled since then.

A cruel history

Since the 1980s, Amnesty International estimates there have been at least 60,000 and as many as 100,000 cases of enforced disappearance in Sri Lanka. The victims include Sinhalese young people who were killed or forcibly disappeared by government death squads on suspicion of leftists links in 1989 and 1990. They include Tamils suspected of links to the LTTE, disappeared by police, military and paramilitary operatives during the conflict from 1983 to 2009. And they include human rights defenders, aid workers, journalists, government critics, and prominent community leaders.

In June 2016, former President Chandrika Bandranaike Kumaratunga, who was in office from 1994 to 2005, acknowledged receiving at least 65,000 complaints of disappearance. The true figure could be as high as 100,000 people, Amnesty International estimates, as communities who have lived and continue to live under a pall of fear and without confidence in the authorities have not reported other cases.

Under international law, an enforced disappearance is where a person is arrested, detained, abducted or otherwise deprived of their liberty by agents of the state, or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places them outside the protection of the law. In Sri Lanka, many “abductions” or “disappearances” have also been carried out by non-state actors, including armed groups.

In Sri Lanka, enforced disappearance have varied in time, scale and intensity at various points in the conflict. Having ratified the Convention, Sri Lanka has an obligation to investigate all allegations of disappearance and, where sufficient evidence exists, to prosecute those suspected of the crimes at all levels in proceedings which should be fair and without recourse to the death penalty. The government must ensure that victims and their families are told the truth and that they are provided with full and effective reparation to address the harm they have suffered.

A way forward: truth, justice, reparation and non-recurrence

In October 2015, the Sri Lankan government committed to develop mechanisms and institute other reforms aimed at delivering truth, justice, reparation and ensuring non-recurrence for past human rights violations and abuses. In public communications, the government of Sri Lanka refers to the overall process as “reconciliation.”

The determined activism of families of the disappeared and widespread public familiarity with the issue has pushed the government to address disappearances first, the process has been stalled. Last year, the Sri Lankan Parliament ratified the International Convention for the Protection of All Persons from Enforced Disappearance. But a bill to implement the Convention by criminalising enforced disappearance in the Sri Lankan Penal Code has yet to be debated.

Also in 2016, Parliament passed a bill to establish the “Office of Missing Persons”. While a laudable step, the government failed to consult with victims and civil society or address their concerns about the bill, including ambiguous provisions on whether evidence of responsibility for disappearance gathered by the Office would be submitted to prosecuting authorities, undermining public confidence in the initiative. The President has yet to sign the bill into law.

Where the government has reached out to victims, it has ignored what they have to say. Public consultations on the design of justice, truth and reparation mechanisms attracted more than 7,000 submissions, including many from families of the disappeared. But officials have shown little interest in the findings and even denigrated the Task Force that organized it.

To move forward, the Sri Lankan government should:

  • Enact legislation making disappearance a crime under national law in accordance with the Convention for the Protection of All Persons from Enforced Disappearance.
  • Amend and enact the Office on Missing Persons Act to ensure that the Office is established effectively without further delay to investigate all allegations of disappearance; ensuring its effectiveness by seeing that it is fairly, transparently and adequately staffed and resourced; ensure that it submits evidence of responsibility for disappearances to prosecuting authorities;\
  • Where sufficient admissible evidence exists, prosecute those responsible for disappearances promptly before civilian courts in fair trials without recourse to the death penalty;
  • Preclude the application of amnesties, immunities and other measures of impunity to persons suspected of committing crimes under international law;
  • Formally acknowledge and prioritize the findings and recommendations of the Consultation Task Force;
  • Ensure that victims, including families of the disappeared, are provided with full and effective reparation to address the harm they have suffered, including restitution, compensation, rehabilitation and satisfaction;
  • Repeal the Prevention of Terrorism Act (PTA) and end its use immediately; abolish Sri Lanka’s system of administrative detention and ensure that any future legislation meant to replace the PTA meets international standards;
  • Release all individuals held under the PTA or other forms of arbitrary or secret detention unless they are charged with recognizable criminal offences and remanded in custody by an independent, regularly constituted court.