Month: November 2015

Disappearances in Sri Lanka and the visit of the UN Working Group on Disappearances

First published at http://groundviews.org/2015/11/11/disappearances-in-sri-lanka-and-the-visit-of-the-un-working-group-on-disappearances/ on 11th November 2015

In the 35 year history of the United Nations Working Group on Enforced or Involuntary Disappearances (“WGEID”), Sri Lanka ranks number two, shamefully, in the numbers of disappearance cases the WGEID has dealt with.[1] The latest figures from the WGEID are as follows: total cases transmitted to the Government for clarification – 12,341; total cases clarified by the Government – 6,551; total cases clarified by other sources – 40; outstanding cases – 5,750.[2]Further, between 2006 (when disappearances escalated drastically) to date, Sri Lanka has had the largest number of disappearance cases, 637 cases, transmitted to any government (Pakistan was second with 169 cases). There is also a clear spike visible between 2006 and 2009: 2006 had 191 cases, 2007 had 164 cases, 2008 had 147 cases, and 2009 had 123 cases.[3]

Disappearances in Sri Lanka have been in the limelight on and off, and its likely to be in the limelight once again, during the visit of the WGEID. The visit, which is already underway, will be the WGEID’s 4th to Sri Lanka, after visits in 1991, 1992, and 1999. It has been 16 years since the WGEID last visited Sri Lanka. Families of the disappeared, Sri Lankan activists, and the WGEID itself has been requesting an invitation for a visit since 2006, but the previous Government had consistently refused permission.

The WGEID

The WGEID, created in 1980, was the first UN human rights thematic mechanism established with a universal mandate.[4] It was created by the Commission on Human Rights, the precursor to the current Human Rights Council,[5] in the aftermath of the large-scale disappearances that occurred in Latin America in the 1970s.[6]

The WGEID’s primary task is to assist families to determine the fate and whereabouts of their missing family members. In pursuance of this task, the WGEID acts as an intermediary; providing a channel of communication between families of disappeared people and governments. The WGEID accepts complaints of enforced disappearances from families and those representing families, assesses the complaints against its criteria of an enforced disappearance, and transmits the cases to the governments concerned.[7]

The numbers and stories 

Beyond the cases transmitted by the WGEID, various Commissions of Inquiries, occasional statements attributed to Police, and estimates by NGOs, there are no clear statistics about the numbers of disappeared persons in Sri Lanka. But it is certainly in the tens of thousands, possibly even up to 100,000.[8] However, I feel that the numbers sometimes takes away the attention from individual tragedies and the human faces that make up the numbers.

It was in 2007 February that Tamil journalist Subramanium Ramachandran was last seen being stopped and taken away from an Army checkpoint near Jaffna. His parents told me they had received calls from his mobile phone in the hours immediately after that, but he was never seen afterwards. Amongst the most inspiring woman I have worked with is Mrs Sandya Ekneligoda. Due to her courageous and determined struggle, and the national and international support she mobilised, some military officers have finally been arrested and questioned this year in relation to the disappearance of her husband, Sinhalese journalist Prageeth Ekneligoda in 2010. A Commission of Inquiry tasked to look into the disappearance of activist Tamil Catholic Priest Father Jim Brown (along with 15 other high profile deaths and killings), who was threatened by the Navy and had last been seen at a Navy checkpoint in Jaffna, stated that they “could not carry out investigations due to non availability of evidence, importantly the inability to find the body of the alleged deceased.”[9] Sixteen habeas corpus cases, which include numerous eyewitnesses of a well-known and elderly Tamil Catholic Priest and prominent LTTE leaders surrendering to the Army at the end of the war, have been dragging on for more than three years in Mullaitivu and Vavuniya courts. A special Committee on Disappearances in the Jaffna region, appointed in 2002 under the Human Rights Commission, found that “248 Tamils had either been killed or disappeared after being taken in by the armed services, and 25 Muslims had either been killed or disappeared after being taken in by LTTE.”[10] A friend from Batticaloa narrated how he, along with thousands of others, watched 158 young Tamils being taken away by the Army from an IDP camp back in 1990, never to be seen or heard of again.[11] Despite my friend submitting names of Army officers who were responsible to several Presidential Commissions of Inquiry, nothing has been done.

The vast majority of those who disappeared after the 1990s have been Tamils. But there have also been Muslims and Sinhalese who have disappeared. The military, police (especially the Special Task Force), and various security apparatus of the state have consistently been identified as being responsible for disappearances. In some cases, family members have identified military or police personnel who took away their loved ones and the camps they were taken away to by name, but to no avail. The LTTE too have been identified as being responsible for disappearances. The breakaway factions of the LTTE in the East (led by Karuna and Iniyabharathi) and key a partner of the previous Government in the North (the EPDP led by Douglas Devananda) have also been identified as being responsible for disappearances in collusion with state forces. The bottom line is that, across the board, whether security personnel or LTTE, there is almost complete impunity for those responsible for disappearances, including under the new Government in last ten months.

Mental and financial impact

Disappearances have caused severe trauma to surviving family members, including parents, spouses, children, and siblings. The elderly mother and father of Father Jim Brown have often told me their yearning to hear news of what happened to their son before their death, but the mother passed away a few years back, without knowing what happened. I am not sure whether the father will hear any news of what happened to his son. While carrying forward the struggle for truth and justice, Sandya Ekneligoda had to also take her younger son for counseling.

Disappearances have also caused severe financial hardships. Families have been compelled to compromise their dignity and seek help from others to survive and carry forward their struggles, due to no fault of their own. Earlier this month, a young Sinhalese mother whose husband disappeared in 2013, called me in desperation to seek help to find money to feed her two young babies. It has been an overwhelming task to find financial support for families of disappeared persons, with very little sympathy from society, the Government, or donors. The lack of financial support has also impeded their struggles for truth and justice.

Threats, intimidation, defamation, restrictions 

Families of disappeared persons, other activist colleagues, and I have faced numerous threats, intimidations, and restrictions from the state in our efforts to challenge disappearances.[12]Balendran Jeyakumary, the mother of a teenager who disappeared after surrendering to the Army was arrested in 2014, and I was arrested for trying to look into circumstances around her arrest and as I was trying to find a place for her remaining teenage daughter to stay. A meeting we had last year in a Church run centre in Colombo with families of disappeared, concerned clergy, lawyers and diplomats was broken into by an angry and threatening group. When we called the Police, they refused to evict the intruders and provide protection for us. The intruders have not been held responsible despite their identities been known and Police themselves being eye witnesses.

Inspiration from a grandmother in Argentina

Since 2007, I have spent a considerable amount of time with families of the disappeared. Accompanying some to hospitals, camps, and police stations in their searches. Talking to them in their homes and in my offices. Joining them in protests in the streets, in Colombo and even Geneva. Going to meet officials and politicians. Going with them to courts, the Human Rights Commission, and various other Commissions of Inquiries. Speaking at events in Colombo, Jaffna, Geneva, and elsewhere about their stories. Writing articles. After all of this, now I also wonder what I have achieved?

But inspiration to continue comes from families of the disappeared. From people like Sandya Ekneligoda and many other mothers and wives. Sinhalese, Tamil and Muslim. Even from outside Sri Lanka. Twice this year, I met Estela de Carlotto, an 84 year old grandmother from Argentina. She founded the Grandmothers of the Plaza de Mayo, to look for their missing grandchildren who were stolen at birth and adopted out; born to people who were made to disappear during the Argentine Dirty War. Estela has had a profound impact on shaping public opinion about disappearances, in Argentina, including the Government, and the world. She found her grandson last year, after 36 years of searching after her daughter had been arrested and subsequently killed after giving birth. She is firm in her commitment to continue the search for other missing grandchildren, until all are found or she is dead. Her words “crying at home and fighting in the streets” is probably what many families of the disappeared go through in Sri Lanka. It is also very true for me.

In Sri Lanka, the biggest challenge, as an activist, has been to get the sympathy and support of ordinary Sri Lankan citizens to the struggles of families of the disappeared. However, given the range of human rights and social justice issues in Sri Lanka, particularly after the war, it has not been easy even for those who advocate against disappearances to consistently support the struggles. Opposition politicians, lawyers, religious clergy, NGOs have played a crucial role in supporting families of disappeared and raising visibility. But sometimes, it was difficult to know whether some of them were using these families to promote their own agendas. It was sad when some activists tried to undermine their struggles, portraying them as being used for political agendas. It is a struggle that leaves a heavy cost on all those involved, and at times, it is extremely difficult to muster the strength to continue. Estela’s story and the fierce struggle of the grandmothers of the Plaza de Mayo, against all odds and for decades, serve as inspiration and a source of strength in continuing with what often seems like an unending struggle.

What can the WGEID do in Sri Lanka and for Sri Lanka?

Families of the disappeared, as well as activists who have been working with them, will have high expectations of the WGEID. Answers will not flow about the fate and whereabouts of disappeared persons during the WGEID’s visit. It has neither the mandate nor powers to achieve that. But my hope is that the visit will help set in motion processes with strong involvement of families, professionals, and international actors that could lead to finding the fate and whereabouts of those who have disappeared. And further, towards justice, reparations, and guarantees of non-recurrence. In this regard, the timing of the visit is significant.

Successive Commissions of Inquiries have been appointed by previous governments to deal with disappearances. The last of which is still functioning, has received 23,249 complaints (5000 relating to the security forces). To the best of my knowledge, the Commission has been unable to find out information about even one person who is still missing.

The new Government has committed to the establishment of an Office of Missing Persons, with the assistance of the International Committee of the Red Cross. The WGIED visit comes within two months of a historic report on an investigation into alleged serious violations and abuses of human rights and related crimes in Sri Lanka, commissioned by the UN to address impunity and ensure accountability in Sri Lanka. The UN Office of the High Commissioner for Human Rights dealt extensively with the issue of disappearances and concluded that there were:

[…] reasonable grounds to believe that the Sri Lankan authorities have, in a widespread and systematic manner, deprived a considerable number of victims of their liberty, and then refused to acknowledge the deprivation of liberty or concealed the fate and whereabouts of the disappeared person. This has, in effect, removed these persons from the protection of the law and placed them at serious risk.

There are reasonable grounds to believe that enforced disappearances may have been committed as part of a widespread and systematic attack against the civilian population, given the geographical scope and timeframe in which they were perpetrated, by the same security forces and targeting the same population.[13]

The WGEID visit comes within two months of the Government having committed to a range of demands that families of disappeared persons and activists have been making for many years: to ratify the International Convention against Enforced Disappearances,[14] to criminalise disappearances in Sri Lanka, and to issue certificates of absence to families of disappeared persons where death certificates cannot be issued. There are no timelines given by the Government for these commitments, nor are there any details available of how the commitments will be given effect.

The WGEID has a strong global reputation spanning 35 years of independence, integrity, and firmly supporting families of disappeared persons and activists. Sri Lanka will test that reputation. They will have to find ways to show concrete forms of solidarity with families of the disappeared and activists, privately and publicly, beyond mere words. They will have to rigorously study the past work done on disappearances and seek as much information as possible in relation to disappeared persons, especially in relation to mass graves and secret detention centres. They will have to gather information on relevant laws, institutions, and mechanisms – both in relation to the past and future. While noting positive commitments and actions by the Government, they will have to be careful not to be carried away by the allure of promising commitments and rhetoric, after all, the devil is in the details, including timelines that are not disclosed. They will have to make sure that diplomatic niceties and political considerations do not make them shy away from asking the difficult questions, sharing uncomfortable truths they may uncover, and making recommendations that may not be welcomed by the Government or even the majority of society, during the visit and also afterwards. Indeed, much will depend on their willingness and ability to do follow up work, and keep up the engagement after the visit, especially until they present a full report of the visit to the UN Human Rights Council in September 2016.


 

[1] In 2002 the WGEID stated that Sri Lanka was the county with the second highest numbers of disappearances on the WGEID’s list, second only to Iraq. Sri Lanka had 12,297 cases transmitted to the Government and 7,335 outstanding cases. Iraq had 16,514 cases transmitted to the Government and 16,384 outstanding cases – Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances, fifty-eighth session, 18 January 2002, UN Doc. E/CN.4/2002/79, para 359 and pp 77-78. In 2015, based on the WGEID figures, Sri Lanka remains the second highest on the WGEID’s list, again second only to Iraq (16,555 cases transmitted to the Government and 16,408 outstanding cases) – Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, thirtieth session, 10 August 2015, UN Doc. A/HRC/30/38, pp 27 and 29.

[2] Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, thirtieth session, 10 August 2015, UN Doc. A/HRC/30/38, p 29.

[3] Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, thirtieth session, 10 August 2015, UN Doc. A/HRC/30/38, pp 41 and 43.

[4] Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, thirtieth session, 10 August 2015, UN Doc. A/HRC/30/38, para 1.

[5] The WGEID was established by the Commission on Human Rights in 1980. Commission on Human Rights Resolution, 29 February 1980, UN Doc. E/CN.4/RES/1980/20.

[6] It was established at a time where there were no international instruments on the issue of enforced disappearance. The fact that it came into existence, in the absence of international instruments, is testament to the grave issue that enforced disappearances posed in the world and the international consensus (as represented through the UN) to take steps to address the problem. The WGEID defines an enforced disappearance based on three cumulative elements: (1) the deprivation of liberty against the person’s will, (2) the involvement of government officials, at least indirectly by acquiescence; and (3) the refusal to disclose the fate or whereabouts of the person. The WGEID considers that the definition of enforced disappearance should, at the minimum, contain the three stated elements). After the Declaration on the Protection of all Persons from Enforced Disappearances was adopted by the UN General Assembly in 1992, the WGEID was entrusted to monitor the progress of states in fulfilling the goals set out in the Declaration and to provide assistance to governments in implementing the goals and existing international rules relating to enforced disappearances. Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, Best practices on enforced disappearances in domestic criminal legislation, sixteenth session, 28 December 2010, UN Doc. A/HRC/16/48/Add.3, para 21; Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances, fifty second session, 15 January 1996, UN Doc. E/CN.4/1996/38, para 55.)

[7] Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, thirtieth session, 10 August 2015, UN Doc. A/HRC/30/38, para 2.

[8] The Presidential Commission of Inquiry that is presently operating has received 23,249 complaints (including 5000 from the security forces). A submission to a previous Commission of Inquiry raised a question about 146,679 persons unaccounted in the last eight months of the war, citing official government statistics. For more statistics, see the section The numbers – if they matter” in the article http://groundviews.org/2013/08/30/sri-lankas-disappeared-visit-navi-pillay-and-another-commission-of-inquiry/.

[9] Report of the Commission of Inquiry Appointed to Investigate and Inquire into Alleged Serious Violations of Human Rights since first August 2005 (“Udalagama Commission”), May 2009, Part I, Case No. 8, p 8.

[10] Report of the Committee on Disappearances in the Jaffna Region, October 2003, pp 18-19.

[11] https://www.colombotelegraph.com/index.php/eastern-university-massacre-missing-missing-missing-for-25-years/.

[12] See some examples at http://groundviews.org/2014/08/30/disappearances-and-the-struggle-for-truth-and-justice/

[13] Human Rights Council, Report of the OHCHR Investigation on Sri Lanka (OISL), thirtieth session, 16 September 2015, UN Doc. A/HRC/30/CRP.2, paras 1127-1128.

[14] International Convention for the Protection of All Persons from Enforced Disappearance, adopted 20 December 2006, UN Doc. A/61/488 (entered into force 23 December 2010).

PTA detainees in Sri Lanka: Prospects for justice

First published at http://groundviews.org/2015/11/06/pta-detainees-in-sri-lanka-prospects-for-justice/ on 6th November 2015

The fast by prisoners last month has given rise to fresh debate about justice for them. It is a sad reflection on Sri Lankan people and the new Government that the prisoners had to resort to such drastic action in order to even gain momentum for justice; for what is a categorical breach of these individuals’ fair trial rights and a failure of the criminal justice system. It has been reported that the fast was called off based on assurances by the President to offer a solution by 7 November 2015. However, what the President will offer as a solution is not clear.

Having been detained under the PTA[1] last year and still remaining under investigation and facing restrictions on freedom of expression after 10 months of “good governance”, justice for PTA detainees is something very personal for me. I consider myself to be the luckiest of those who have come into contact with the PTA; my detention was relatively short, I was not harmed physically, and today I am relatively free physically. Ironically, despite being a “terrorist suspect”, this year I have been invited to meetings on various human rights issues, including reconciliation, accountability, and transitional justice, with the Prime Minister, other Government Ministers, and the Permanent Representative of Sri Lanka to the UN in Geneva. I attended a few of those meetings in good faith, but I still ask myself whether I should participate in such discussions when I am, by their own designation, still a terrorist suspect.

In my view, there are six distinct categories of PTA detainees, and a key issue is how these six different categories will be addressed. The six categories are:(1) those who have been arrested but are detained without charge, (2) those who have been charged but their cases have not been concluded, (3) those who have been convicted, (4) those whose convictions are being challenged in courts, (5) those who are in “rehabilitation”, and (6) those who are still under investigation without being in detention.

How long will it take to implement the President’s November 7th solution?  Weeks, months, years? Which cases will be prioritised?Those awaiting justice have been waiting from a few months to upto two decades.

The lack of official information has also led to speculation about the actual numbers in each category, as well as preventing proper checks and balances about each category. In January 2015, a list of 182 persons in 11[2] remand prisons under the PTA was released (“the January List”). The January List excluded those who have been convicted under the PTA. The January List also excluded those detained in places such as the headquarters of the Terrorist Investigation Department (TID) in Colombo and Boossa. Further, during this year, I am aware of two persons in the January List who were acquitted, at least one person who was released on bail, and two persons that have been convicted. Between January and August 2015, there have also been at least 21 reported arrests under the PTA. Thus, the actual numbers of PTA detainees/suspects/those under investigation is likely to be higher than 182.

This article below is largely based on information contained in the January List of 182 names, complimented by personal interviews with detainees, those released, their families, lawyers, and activists assisting them.

Categories

Convicted

According to the Minister of Justice, 99 persons have been convicted under the PTA and out of this, 45 have been sent for rehabilitation and 54 were serving their sentences[3]. The Minister’s statement raises more questions than provides answers. Is this figure the total number persons convictedsince the inception of the PTA? How many of the 54 serving their sentences are under appeal? To the best of my knowledge, convicted persons are not sent for rehabilitation, rather it relates to suspects (whether they are charged on not) who have agreed to subject themselves to rehabilitation and thus, who the 45 persons are not clear. Basically, to date, there is no official information relating to the numbers of convictions since the inception of the PTA, the nature of the convictions, the duration of sentences handed down, and how many are still serving sentences. Another key piece of information lacking is how many convictions are based solely (or primarily) on confessions.

Convicted, but on appeal

The number of those who have been convicted under the PTA but whose convictions (or sentences) are being challenged on appeal has also not been revealed. Some of the 54 quoted by the Minister could be on appeal, with their convictions or sentences or both being challenged.

Charged, but cases not concluded

This is a critical category. According to theMinister’s statement above, 134 have been charged and their cases are ongoing. We do not know how long these 134 individuals have been in detention for, awaiting trial.The January List indicated that there are people who are detained upto 18-19 years whose cases have still not been concluded.

Arrested, but not charged 

This is also a critical category. The Ministers statement referred to above indicates 85 persons had not been charged. We do not know how long these 85 individuals have been in detention for, awaiting charges.

Suspects, but not in detention

Out of the six categories, this is the least urgent category, as these persons’ liberty has not been deprived or is no longer deprived. Nevertheless, it is still a category on which no information is available and should be dealt with within a specific time frame. This category includes Ms Balendran Jeyakumary, Father Praveen, me and several others. The number of persons in this category is unknown. It has been nearly 20 months since Father Praveen and I were arrested and released, and despite two written submissions by my lawyers to the Attorney-General in 2014 and 2015, there is still a refusal to close the case. I have also been subjected to restrictions on my freedom of expression and my confiscated equipment has not been returned. The overseas travel restrictions on me was removed only after 15 months.Others are still subjected to overseas travel restrictions. Ms Jeyakumary has to present herself to a Police station every month after being released on bail. In September 2015, she was re-arrested and detained for six days, even though she was only released on bail after 362 days in detention (without charge). She is assumed to be amongst the eight persons the Justice Minister has said is on bail.

Detained in “rehabilitation centres”

Some of those who are detained had “bargained” with authorities to “accept guilt” and serve time in a “rehabilitation centre”, instead of waiting unknown periods of time for a trial and risking long sentences if they were convicted. These can hardly be called “voluntarily” requesting for rehabilitation.

Double standards

Most of the top leaders of the LTTE were killed or have disappeared after surrendering to the Army. Other top leaders are within the Government, including Karuna and KP, which is a blatant double standard. In particular, as Karuna and KP are accused of complicity in very serious crimes. KP has publicly admitted to being the leader of the LTTE. But the reasons for detention of some presently detained under the PTA have been given as “encouraging LTTE” or “supporting LTTE”. Some of those kept in detention have been declared not guilty by Courts and released after long years in detention – few months ago, a Tamil mother was acquitted as not guilty after 15 years in detention. How fair is it to refuse to detain and prosecute top leaders of the LTTE like Karuna and KP, who are “most responsible” and yet detain, prosecute, convict for decades those “less responsible”?

Use of confessions 

Another key issue, which has not come to the limelight, is the use of confessions under the PTA. There is no official information relating to those who have been charged or convicted based on confessions. This is critical information in a context where confessions made to police or other public officers, which ordinarily are not admissible unless made in the presence of a Magistrate,[4] are considered admissible evidence under the PTA.[5]Confessions, in the PTA context, are routinely obtained under duress, including torture, in circumstances where individuals have very little or limited access to lawyers, families, and medical assistance.

Justice for those acquitted after numerous years in detention

In the last few months, two Tamil mothers were acquitted by Courts after more than 15 years and 6 years of detention. There maybe other such individuals who have been acquitted or released after numerous years in detention. As the Government attempts to conclude other PTA cases, more of those who have been detained, anywhere upto two decades, could be acquitted or released. The Government will have to think of ways of providing justice for such persons.At the very minimum, a public apology at a personal meeting with the President/Prime Minister, reimbursement of all costs in relation to the detention for the detainee and family, loss of income, compensation and other facilities and opportunities to recover from the mental and physical harm suffered could be considered. The Government ought to also launch investigations to determine why PTA cases have been so long and drawn out, including disciplinary action and criminal prosecutionsagainst those responsible.

Concluding reflections

For 10 months, why has the “good governance” Government failed to address the issue of PTA detainees?

Why has the Government failed to provide the country with comprehensive, clear, specific and official statistics relating to the PTA detainees?  Will this information ever be provided and, if so, when?

Promptly dealing with PTA detainees who are in detention in limbo without charge, or are charged but are awaiting a trial, is a minimum first step to giving effect to fair trial rights and providing justice to these prisoners. Further, there must be the provision of comprehensive and clear information about numbers and timelines for dealing with such persons Without immediate and significant movement in ensuring justice for these prisoners, reconciliation and transitional justice will ring hollow.

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[1]Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (“PTA”).

[2]Anuradhapura, Kandy, Badulla, Moneragela, Polonnaruwa, Trincomalee, Jaffna, Negombo and three in Colombo, namely the New Magazine Prison, Colombo Remand Prison, and Welikada.

[3]http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=126154

[4]Evidence Ordinance 1896, ss 25-26.

[5]PTA, ss 16-17.