human rights defenders

Military Occupation: documenting civilian protests and the struggle of the newly resettled

First published at http://groundviews.org/2017/03/16/military-occupation-documenting-civilian-protests-and-the-struggle-of-the-newly-resettled/ on 16th March 2017

Editor’s Note: Since early February, Ruki Fernando and Marisa de Silva have been joining protests against land occupation by the military (security forces) in the North.

This is an immersive photo story written by them, compiled using Microsoft Sway. Click here to access it directly, or scroll below.

https://sway.com/s/PYeLhcgFAhWbpcTH/embed

Draconian law cripples Sri Lanka’s reconciliation hopes

“The country’s leadership needs to act on commitment to repeal Prevention of Terrorism Act”

First published at http://www.ucanews.com/news/draconian-law-cripples-sri-lankas-reconciliation-hopes/78188 on 3rd Feb. 2017

In March 2014, my colleague, Father Praveen and I were arrested and detained under the Prevention of Terrorism Act by the Terrorist Investigation Department, under Sri Lanka’s authoritarian government of former president Mahinda Rajapakse.

Three months ago, under the new government whose slogan has been good governance and rule of law, I was briefly detained and interrogated at the airport while traveling to the United Kingdom for meetings related to human rights. More than two years after the new government came to power, the investigation against me and Father Praveen continues and we are still terrorist suspects.

Court orders restricting our freedom of expression, obtained in March 2014 by the state are still in place. Our electronic equipment, confiscated at that same time, has still not been returned. The investigation led to me being publicly discredited as a terrorist supporter. My parents and I will find it difficult to ever recover.

We were arrested while looking into the arrest of a large number of Tamils in north Sri Lanka, including Balendran Jeyakumary, the mother of a disappeared child, who had been a vocal campaigner against forced disappearances. Although Jeyakumary was conditionally released two months after President Maithripala Sirisena took office in January 2015, she was re-arrested a few months later and detained for about a week.

She was again summoned for intense interrogation in August 2016. She still must report to the police every month and must go to court regularly. She also faces social isolation, struggles to find work and has been compelled to keep her young daughter in a hostel. The arrest ruined her and her daughter’s life.

 

Continuing use of the Prevention of Terrorism Act 

The United National Party and the Sri Lanka Freedom Party, the two parties that have ruled Sri Lanka since independence, have used the act to suppress dissent for decades.

In 2008, during the last phase of the war, the act was used to arrest, detain and convict Tamil journalist, J.S. Tissainayagam. In 2009, it was used to detain Christian activist, Santha Fernando. After the war, in 2013, it was again used to arrest and detain opposition Muslim politician, Azath Salley. These are a few better-known examples.

A coalition of the two main parties formed a government in 2015 and continued to use the terrorism act to arrest and detain people, mostly Tamils, albeit on less intense scale.

Some were abducted and later found to be detained. No one has been held accountable for these abductions, bringing into question whether the directives on arrest and detention by President Sirisena in June 2016 have had any impact.

The arrest and detention of Jeyakumary, Tissainayagam, Santha, Salley, as well as Father Praveen and I received national and international media coverage and we had the support of committed lawyers and activists as well as the diplomatic community.

I believe we were released, after periods ranging from few days to two years, due to that support. But people who didn’t get such attention, continue to languish in jail without charge. When they are charged, trials can take years.

In 2015, two Tamil mothers were acquitted after being detained for a total of 22 years. There has been no acknowledgement of their suffering, no apology and no compensation.

I have been told by detainees and lawyers that charges were framed and convictions obtained based on confessions made under duress, as the terrorism act allows such evidence to be admitted for trial. Most detainees I have met have been tortured. They have been scarred for life, mentally and physically.

 

Replacing the act but retaining its draconian features

Recently, I saw a leaked version of a draft policy and legal framework for the Counter Terrorism Act, that will replace the previous act. Like its predecessor, it contains many draconian clauses. It has vague and broad definitions that could infringe on free expression and activism and grants excessive powers to the police to detain people for long periods without judicial supervision.

The spirit and purpose of the old and new acts are similar: giving extreme powers to the executive, military and police in the name of preventing and countering terrorism, and disregarding life, liberty and dignity.

The previous act served as a license for enforced disappearances, arbitrary detention and torture. It removed lifesaving protections when they were most needed: within the first few hours and days of a person being arrested.

The new Counter Terrorism Act seeks to extend this license with a new label and face. No official information has been made available to Sri Lankan citizens about the replacement act either.

 

Sri Lanka’s international obligations and waning international interest

Numerous U.N. treaty bodies have pointed out the terrorism act’s incompatibility with Sri Lanka’s international obligations, most recently the Committee against Torture in December 2016.

For several years, the U.N. High Commissioner for Human Rights raised similar concerns. But at the same time, some U.N. officials appeared to be willing to ignore these concerns or place excessive confidence and faith in the Sri Lankan government. In a report released earlier this month, the European Commission said that Sri Lanka must ensure its counter-terrorism legislation is in line with international human rights conventions. But it still granted trade privileges to Sri Lanka assuming the “government has started a legislative process to replace the Prevention of Terrorism Act and is making good progress in releasing persons detained under it.”

This appears optimistic at best. While some detainees were released in 2015-2016, there have been many new arrests. Cases continue at a snail’s pace and even those released continue to be harassed.  The terrorism act reform process is shrouded in secrecy, with the government appearing to consult the European Commission, U.N. and a few experts of their choice, instead of being transparent with the victims, their families and the Sri Lankan people.

 

Way forward

Repealing the Prevention of Terrorism Act and getting justice for detainees is a crucial element in forging reconciliation. How can we victims and our families talk of reconciliation if we are still being detained, investigated and face continuing restrictions?

How can we talk of reconciliation if there is no acknowledgement, no apology and no reparations? How can we believe guarantees of non-reoccurrence when the new government did not repeal the act for two years, when secret processes are underway to bring in similar laws, and persons continue to be abducted?

As a victim of the terrorism laws, what I think needs to be done is to ensure justice to all past and present detainees, repeal the legislation and, instead of focusing on equally draconian new anti-terror laws, focus on strengthening legal and institutional frameworks to combat crime and terrorism, while ensuring due process and protections.

The coming months could be crucial. The Council of Europe and the European Parliament must insist on the repeal of the terrorism act before enhanced trade status is granted. At the March session of the U.N. Human Rights Council, its member states and the U.N. High Commissioner for Human Rights must insist that the government fulfills its October 2015 commitment to repeal the Prevention of Terrorism Act in line with international standards. Both the U.N. and E.U. must stand for justice for terrorism detainees.

But what’s most needed is for the Sri Lankan people to recognize the injustices that have been done to their fellow citizens, brothers and sisters and express outrage about laws that infringe on their safety, freedom and dignity.

The president and prime minister must be transparent about efforts to bring in similar laws. Catholics and church leaders, the majority of whom have been silent, should be part of this, insisting that unjust laws are against the faith and that to justify them or be silent is a sin.

The Troubling Detention of Ruki Fernando

First published as an interview by Taylor Dibbert at http://www.huffingtonpost.com/taylor-dibbert/the-troubling-detention-o_b_12310814.htmlon 3rd October 2016

On October 1, Sri Lankan human rights activist Ruki Fernando was detained at Bandaranaike International Airport. This is Sri Lanka’s principal international airport and is located about twenty miles north of Colombo, the capital. Mr. Fernando has written about the experience (and provided some background information) for Groundviews, a Sri Lankan civic media outlet.

Here’s a paragraph from that piece:

Today, 1st Oct. 2016, I came [to] the Bandaranaike International Airport in Sri Lanka to travel to London. I was asked by the officer at the immigration counter to get clearance from an office I understood to be an office of the Terrorist Investigation Department (TID), situated next to the immigration counters. Inside this office, I was questioned [about] whether I have a case pending, where I was traveling, purpose of my travel, my work and personal details, including addresses and phone number, details of family members etc. An officer wrote down my answers, but I was not shown what was written and I was not asked to sign any documents. Photocopies of my travel documents were also made. They also appeared to examine a file they had.
He was eventually allowed to board his flight. Nonetheless, there’s no question that this is a worrisome development. In a brief exchange, he provides additional insights. This interview has been edited for clarity.

During the past couple weeks, did you notice anything unusual? Had you been under surveillance?

Well, the TID has reportedly asked about me from at least one person they were interrogating recently. Beyond that, I don’t recall anything unusual. But I have been confronting police trying to obstruct peaceful protests and been pushing hard on the right of detainees to access lawyers during detention, especially by the TID. I’ve also been publicly highlighting continuing abductions/disappearances, arrests and detention under the [Prevention of Terrorism Act] PTA this year — the vast majority have occurred in the North. And I’ve generally been quite critical of continuing human rights violations and lack of progress and genuine will to addressing the past. Although I have also been trying to engage constructively with various government processes. So maybe this is an attempt to try and shut me up, or to try to co-opt me to be less critical?

I didn’t feel I was under surveillance for the last year or so. Except at protests, other events, and when in the North, where it appeared to be the event and everyone at it was under surveillance and not just me.

Like my arrest in March 2014, this incident appears to have generated a lot of attention. But this type of intimidation, questioning and surveillance is commonplace, although of less intensity and regularity than under the Rajapaksa years. It will be tragic if this incident takes away attention from Balendran Jeyakumary who is still being investigated under the PTA and subjected to harassment and questioning. The same goes for political prisoners who are still being detained under the PTA for many years — and also threats, intimidation and attacks on human rights defenders and journalists by police and security agencies, negative remarks on [nongovernmental organizations] NGOs and journalists by the president, the prime minister and other government officials, etc.

And I hope the attention this incident has generated will open the eyes and ears of some who appear to want to be blind, deaf and dumb to such incidents and trends. And make them think twice about uncritically welcoming developments in Sri Lanka and prematurely and mistakenly portraying Sri Lanka as a success story in good governance, economic development and transitional justice.

Do you anticipate any problems getting through airport security when you return?

I really, really hope the authorities will officially provide me with some clarity on who actually stopped and questioned me and why before I return. I’m worried about what may happen on my return. But I want to return and continue my activism.

What impact, if any, will this incident have on your work in Sri Lanka?

This will impact my activism and life. My parents are very worried. They and relatives and some friends will again exert pressure for me to restrain myself. Some survivors and victims’ families, as well as local activists I have been assisting and working with will worry about drawing attention to themselves by their interactions with me, and may want to distance themselves from me. It might even intimidate some of them to reduce their activism, thinking about what may happen to them.

Follow Taylor Dibbert on Twitter: http://www.twitter.com/taylordibbert

Harrasment of human rights defenders even under “yahapalanaya”

First published at http://groundviews.org/2016/10/02/harassment-of-human-rights-defenders-even-under-yahapalanaya/ on 2nd October 2016

Today, 1st Oct. 2016, I came the Bandaranayake international airport in Sri Lanka to travel to London. I was asked by the officer at the immigration counter to get clearance from an office I understood to be an office of the Terrorist Investigation Department (TID), situated next to the immigration counters. Inside this office, I was questioned whether I have a case pending, where I was traveling, purpose of my travel, my work and personal details, including addresses and phone number, details of family members etc. An officer wrote down my answers, but I was not shown what was written and I was not asked to sign any documents. Photocopies of my travel documents were also made. They also appeared to examine a file they had.

While I was being questioned, other officers appeared to be checking from the TID head office in Colombo whether to allow me to proceed to my flight or not. They appeared to be trying to expedite the process to ensure I will not miss the flight.

Meanwhile, the Attorney General’s department and TID head office has been contacted through my lawyers. One of my lawyers who was also traveling overseas and had cleared immigration already, requested to come into the office I was being kept to speak to me and officers who were questioning me. But she was not allowed and had to stand outside while I was being questioned.

This appeared to be a violation of recent recommendation of the Human Rights Commission of Sri Lanka to strengthen suspects access to lawyers, especially by providing access before statements are recorded.

Finally I was informed that I was free to travel. I asked the officer in charge what was the reason I was detained and questioned. He pointed out there was very limited time left for my flight and suggested I proceed to the flight rather than discuss this further and risk missing my flight. I then left towards the boarding gate with my lawyer.

The officers questioning me were polite and didn’t physically harass or threaten me. But it was a scary experience to be detained and questioned even briefly, especially given my past experiences of being detained, questioned, threatened etc. And to know that I was still under close scrutiny and not able to travel overseas for human rights work without harassment and intimidation. After long tense journey, I have now arrived safely in London.

Background
I was traveling to deliver several talks on transitional justice and human rights at events organized by the Centre for Applied Human Rights at the University of York in UK and several other human rights related meetings.

I’ve been subjected to an ongoing investigation under the Prevention of Terrorism Act since March 2014 (case no. B4414/08/14). This is after being arrested, detained and released by the TID in March 2014. A court order that TID had obtained in March 2014 continues to restrict my freedom of expression and my confiscated electronic equipment had not yet been returned. My lawyers have made several written submissions and oral representations to the Attorney General’s department but there is no update in closing the investigation against me, returning the confiscated equipment and removing the gag order.

From March 2014 to July 2015, I had to obtain court permission for each of my overseas travels. Despite obtaining court permission, I encountered delays at the airport. On one occasion, I was not allowed to board the flight and and was only allowed to travel overseas the next day, after additional interventions of my lawyers. Based on an application I made to Colombo Magistrate Courts through my lawyers, this travel restriction was lifted by courts in July 2015. Since then, I had traveled overseas several times, without being stopped or questioned by the immigration or any other officials. It remains a mystery why the immigration suddenly had to get permission from TID again to allow me to travel overseas and why I had to be detained and questioned before being allowed to travel.

 

 

 

UN Chief’s Visit to Sri Lanka Does Little to Address Struggles of Those Awaiting Justice

First published at http://thewire.in/65729/un-secretary-generals-visit-and-tears-of-sri-lankan-survivors/ on 13th September 2016

Ban Ki-Moon acknowledged the “big mistakes” the UN made in relation to Sri Lanka under his leadership, but is yet to lay out a concrete rights-based strategy for the country.

bankimoon_reuters

UN Secretary-General Ban Ki-moon with Sri Lanka’s Foreign Minister Mangala Samaraweera in Colombo. Credit: Reuters

Madushka De Silva disappeared on September 2, 2013 in Anuradhapura – Sri Lanka’s Sinhalese-Buddhist heartland in the North Central Province. The third anniversary of his disappearance coincided with Ban Ki-Moon’s visit to the country. On that day, the UN secretary general was so close, and yet so far from De Silva’s wife, Mauri Inoka.

While Inoka, along with about 12 activists, was confronting a hostile police on the streets of Colombo, who claimed to be concerned about the security of the secretary general, Moon was at the nearby Hilton Hotel with his delegation, politicians, government officials and some of Colombo’s diplomats and civil society activists. The secretary general, or even a member of his delegation, had no time to drop by and spend a few minutes with Inoka, who had submitted a formal complaint about the disappearance of her husband to the UN. When she went to the hotel to attend the secretary general’s “public” lecture, she was turned away, as she was not on the list of “public” who were invited to this “public lecture”.

Beyond the physical distance and barriers, Inoka’s frustrations with the new government appeared to be in stark contrast with the secretary general’s optimism and praise for the new government. Or perhaps, it showed the distance between the diplomatic niceties of the UN and the tears of Inoka and her children along with the tens of thousands like her.

 Attacks on freedom of expression and assembly

Inoka had spent the previous night and day on Colombo’s popular beachfront, Galle Face Green, observing a 24-hour protest vigil. For three years, she had been calling on authorities to investigate the disappearance of her husband and provide some interim relief to her and her children. However, she hasn’t receives any answers in the past three years and they don’t appear to be forthcoming in the future.

In desperation, Inoka, together with 12 friends and supporters, organised a peaceful and silent march towards the Presidential Secretariat and the Hilton Hotel. “We were armed with only photos of Madushka and banners. Vehicles and pedestrians passed by us freely, with absolutely no disruption. But despite our pleas, we were stopped by the police, violating our rights to freedom of expression and assembly,” she said. “After we were compelled to disperse, a lawyer and an activist at the protest were stopped and subjected to intimidation by the police when they were leaving.”

Instead of expediting the investigation into her husband’s disappearance, the police have started investigating Inoka and some activists who were supporting her. She and at least four activists have been summoned to the Fort Police Station on the morning of September 14. Some of the activists have expressed fears of being arrested.

On August 31, hours before the secretary general arrived in Colombo, several university students were reported to have been hospitalised due to the teargas and water cannons used by the police to disperse them from staging a protest march against a private medical college and demanding an increase in the university intake.

On the day after the secretary general left from Sri Lanka, the police stripped a young man on the road and assaulted him on charges of being a drug user. When a journalist challenged the police conduct, he too was assaulted.

Although the space for freedom of expression and assembly has increased since January 2015, such incidents have happened regularly in the past 20 months, especially in the highly militarised North.

Despite these incidents, the secretary general chose to unreservedly welcome the good governance initiatives of the new government.

Long wait 

More than 100,000 Sri Lankan families, who have reported missing relatives since the 1980s, share the pleas of Inoka.

Like Inoka, nearly all families await truth, justice and reparations. When the secretary general visited the war-torn Jaffna, several Tamil families of the disappeared, from across the North, lined up the streets with photos of their loved ones, placards demanding truth and justice, and with tears in their eyes.

Protesters rally as UN chief Ban Ki-moon visits Sri Lanka. Credit: Reuters

Protesters rally as UN chief Ban Ki-moon visits Sri Lanka. Credit: Reuters

A few days after the secretary general left, a young Sinhalese boy was reported to have disappeared in the Southern city of Hambantota after last being seen in police custody. The day before the arrival of the secretary general, an ex-LTTE cadre – a Tamil – was reportedly abducted in a white van, in the highly militarised Northern city of Kilinochchi.

He was later reported to have been found in police custody, just like several other Tamils who were abducted earlier this year. The whereabouts of at least two other Tamils who disappeared from the North earlier this year remain unknown despite complaints to the authorities.

Ironically, the abduction of the ex-LTTE cadre was reported to have happened on the International Day for Victims of Enforced Disappearances, in the same month parliament approved the setting up of an Office of Missing Persons (OMP) – the government’s latest initiative to address disappearances – and three months after Sri Lanka ratified the International Convention for the Protection of All Persons from Enforced Disappearances.

Despite serious concerns being expressed about the “consultation” process and the OMP by families of disappeared, byactivists and by the government’s own Consultation Task Force, long before and even during his visit, the secretary general chose to welcome both.

Tamils, whose lands are occupied by the military, also took to the streets of Jaffna when the secretary general present. Some of them travelled several hours and over hundred kilometers and were probably consoled by the fact that the secretary general had called for speeding up process of return of land so that they could return home.

Before the secretary general arrived in Colombo, families of the Welikada prison massacre and eyewitnesses who were being threatened and intimidated appealed to him for a meeting. They also pleaded with him to highlight the lack of progress in investigations and prosecutions in his private meetings and his public remarks to the media. While the contents of private discussions are unknown, there was no reference to impunity in relation to this single largest post-war massacre in any of secretary general’s public remarks.

He, however, did emphasise that the victims deserve to have their voices heard, that they deserve credible, transparent and solid transitional justice mechanisms and that they cannot wait forever. He also indicated that he had stressed the importance of these with political and military leadership.

UN’s failure and attempts to move on

The secretary general was forthright about what he called the “big mistakes” that the UN made in relation to Sri Lanka under his leadership, and that if the organisation had been more engaged, they could have saved several more human lives.

Despite this having been acknowledged in 2011 by the secretary general’s panel of experts and subsequently by a UN internal review report, the secretary general personally acknowledging this in Sri Lanka was of significance. He, however, stopped short of apologising for this monumental failure under his leadership and avoided facing those who were abandoned by the UN, despite some of them lining up the streets in Jaffna while he was there.

Instead, the secretary general remarked that the UN had learnt “very hard lessons from Sri Lanka where the fog of war had obscured the centrality of human rights” and that the UN had taken steps to ensure that human rights were at the centre of all its decision-making. He squarely attributed the Human Rights up Front (HRuF) initiative as a response to the mistakes the UN made in Sri Lanka and the lessons they had leant.

Looking ahead

If the UN’s HRuF were to become a reality, a good place to start would be Sri Lanka – the tragedy that led to the initiative. The report of the panel appointed by the secretary general helped kick start subsequent actions on Sri Lanka at the UN Human Rights Council and by the Office of the High Commissioner for Human Rights (OHCHR). However, a coherent rights-based strategy from the UN towards Sri Lanka is not yet visible.

The new government has improved relations with the UN and intensified engagement with UN officials. But despite this, the secretary general doesn’t appear to have elicited a major commitment from the Sri Lankan government during the visit, such as ways to engage with the Human Rights Council beyond March of next year, or establishing an OHCHR field office in Sri Lanka.

It is becoming increasingly difficult to engage with UN officials and the member states, especially to get a response for people like Inoka, the families and eyewitnesses of the Welikada prison massacre and the many survivors and families of victims from the North who ask, “will the UN listen to us, what they will do for us?”

Last week I choose to be with Inoka at her vigil and forego the meeting with the secretary general. But, despite survivors, families of victims and some activists trying to communicate reports of continuing violations, and the limited progress in addressing impunity to the UN, rights issues didnot feature prominently in the secretary general’s public remarks.

Neither was there much symbolic action expressing solidarity and support for the struggle for rights by Inoka and others like her.

The UN, especially the incoming secretary general should be careful not to get carried away with the “charm offensive” of the Sri Lankan government and its ambitious promises. Changes for the better, after an end of a three decade brutal war and a decade of authoritarian rule, should not lead to Sri Lanka being prematurely marketed as a “success story,” even before the survivors and the families of victims experience tangible changes in their lives.

While much of the reform must happen within Sri Lanka, the UN officials and member states still have an important role to play beyond praising the positive initiatives and the progress made. The secretary general, the High Commissioner for Human Rights and UN’s various mechanisms and institutions should try to provide an objective picture of the situation in Sri Lanka to the UN member states, find ways of continuing engagement over the next few years and give a central place to the tears, cries, struggles and expectations of Inoka and others like her.

Sri Lanka’s Transitional Moment and Transitional Justice

First published in the report “Human Rights situation in Sri Lanka: 17Aug 2015 – 17 Aug2016” by INFORM Human Rights Documentation Centre on 18th August 2016

Within the first month after winning the parliamentary elections in August 2015, the new Government made a series of commitments related to transitional justice. These were articulated through a speech by the Foreign Minister at the 30th session of the UN Human Rights Council.[1] These commitments were also reflected in the resolution on Sri Lanka that was adopted by the Human Rights Council on 1 October 2015.[2] The resolution came just after the UN High Commissioner for Human Rights had published a report which alleged war crimes and crimes against humanity and other serious violations of international human rights and humanitarian laws, by both the Sri Lankan government and the LTTE.[3]

Government’s commitments 

The present Government’s commitments included setting up an Office of Missing Persons (OMP), a Commission for Truth, Justice, and Guarantees of Non-reoccurrence, a Judicial mechanism with Special Counsel, which will have the participation of foreign judges, prosecutors, investigators and defence lawyers, and an Office for Reparations. The Government also committed to reduce the military’s role in civilian affairs, facilitate livelihoods, repeal and reform the Prevention of Terrorism Act (PTA), criminalise disappearances, ratify the Enforced Disappearance Convention[4] , review the victim and witness protection law, and range of other actions. Consultations to seek people’s views on transitional justice is underway across the country, under the leadership of some civil society activists.

The Enforced Disappearance Convention was ratified in May this year and the draft Bill to create the OMP was passed by Parliament on 11 August. There are positive features as well as weaknesses and ambiguities in the Bill[5]. Due to a history of failed initiatives, the minimal ‘consultations’ that occurred during drafting process and the lack of information on details, there appears to be very little confidence in the OMP amongst families of the disappeared. This is likely to be the case for other mechanisms, unless there’s a drastic change in approach from the government.

Reactions to transitional justice within Sri Lanka

Currently, the transitional justice agenda appears to be polarising Sri Lankan society. Opinion polls, and my own impressions, indicate that the Tamil community, particularly in the North and the East, who bore the brunt of the war, appears to favour strong international involvement. But the majority Sinhalese community appears to reject international involvement. Varying opinions have been expressed about forgetting the past, memorialisation, prosecutions, and amnesty. There are also different or contradictory opinions and expectations within each ethnic community and amongst survivors of violations and families of victims.

The Government’s transitional justice commitments have been criticised by the former President and his supporters. Even the release of a few political prisoners, the release of small amounts of land occupied by the military, and the establishment of the OMP to find truth about missing persons have been framed as an international conspiracy that endangers national security and seeks revenge from “war heroes”.

There does not appear to be an official Government policy document on transitional justice. The Government’s commitments have only been officially articulated in Geneva by the Foreign Minister and not in Sri Lanka . The Foreign Minister has been the regular advocate and defender of these commitments. Some of the meetings with local activists have been convened by him and the Secretariat for Co-ordinating Reconciliation Mechanisms (SCRM) is housed in the Foreign Ministry. All these contribute to the process being seen as emanating and driven by foreign pressure. Outreach on the Government’s transitional justice plans appears to focus on the international community and not towards Sri Lankan people.

The President and Prime Minister have not been championing the Government’s official commitments. For example, the duo have publicly stated that the commitment to have foreign judges in the judicial mechanism will not be fulfilled. Even this has not satisfied the critics alleging foreign conspiracy, and has disappointed some activists, especially Tamils, as well as survivors and victims’ families.

Developments on the ground

Monuments erected to honour the Sinhalese dominated military during the Rajapakse time continue to dominate the Tamil majority Northern landscape. Army camps that were built over some of the cemeteries of former LTTE cadres that were bulldozed by the Army after the war are still there. The loved ones of those whose remains were in these cemeteries have no place to grieve, lay flowers, light a candle, or say a prayer. While the numbers have reduced from those under the Rajapaske regime, intimidation and reprisals on families, attacks, and threats and intimidation of activists and journalists continue to occur. Limited progress on issues, such as the release of political prisoners, land occupied by military, continuing military involvement in civilian affairs in the North and East, reports of continuing abductions, and arrests under the PTA have raised doubts about the Government’s commitments. Although a few military personnel have been convicted and some others arrested on allegations of human rights abuses, the lack of progress in thousands of other cases only reinforces calls for international involvement for justice.

Towards Rights & Democratization beyond Transitional Justice framework

Unemployment, debt, and sexual and gender-based violence is widespread in the former war ravaged areas. The new Government’s economic and development policies are focusing on trade, investment, and mega development projects, which privilege the rich and marginalise the poor. Pre-war rights issues, such as landlessness, sexual and gender-based violence and discrimination, caste, rights of workers, including those working on tea estates, still need to be addressed.

A consultation process towards a new constitution drew a large number of public representations, dealing with many of the issues mentioned above. But the next steps are not clear, particularly in finding political solutions to the grievances of the country’s ethnic minorities.

The political leadership will have to reach out to all Sri Lankans, especially to the Sinhalese majority, about its reform agenda, while taking principled actions to win the confidence of numerical minorities such as Tamils and Muslims. At the national level, the coming together of the two major political parties and support of the two major parties representing Tamils and Muslims, makes this a unique opportunity to push towards radical reforms.

It will also be a challenge to go beyond a conventional transitional justice framework and use the transitional moment to move towards reconciliation, democratisation, and sustainable development, by addressing civil and political rights as well as economic, social, and cultural rights in a holistic manner, considering the yearnings of war survivors, victims’ families, and the poor, for truth, reparations, criminal accountability, and economic justice.

[1] Speech by Hon Mangala Samaraweera at the 30th session of the Human Rights Council, Geneva, 14 September 2015.

[2] Human Rights Council Resolution, Promoting reconciliation, accountability, and human rights in Sri Lanka, 14 October 2015, UN Doc. A/HRC/RES/30/1 (adopted 1 October 2015).

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

[4] 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) (“Enforced Disappearance Convention”).

[5] For more on OMP, see http://thewire.in/42687/sri-lankas-disappeared-will-the-latest-missing-persons-office-bring-answers/

On Rights and Justice: Some Perspective from Colombo

First published at http://www.huffingtonpost.com/taylor-dibbert/on-rights-and-justice-som_b_11250536.html on 28th July 2016

Ruki Fernando is a human rights activist based in Colombo, Sri Lanka. In this interview, Mr. Fernando shares his thoughts on a range of salient issues.

Sri Lanka’s former president, Mahinda Rajapaksa, took the country in an ever more authoritarian direction. How much has changed since Maithripala Sirisena became president in January 2015?

Authoritarianism has lessened and there is more space across the country for free expression, free assembly and free association. This was visible when Tamil people in the country’s North and East came out for the first time on May 18, 2015 — to grieve collectively and publicly for their loved ones who had died during the civil war. There was more space and less restrictions and less intimidation for this in 2016 compared to 2015. However, there have been regular incidents of surveillance, intimidation, harassment and threats on journalists and activists — particularly in the North and East, even though the intensity and regularity of these incidents appears to be less than it was during the Rajapaksa era.

I feel more safe and free, and now travel to the interior of the Vanni (in the country’s Northern Province). I also go home late at night on my own, using public transport — something I never did when the Rajapaksas were in power. But even after 18 months of “good governance,” I’m still under investigation by the Terrorist Investigation Department and my freedom of expression is restricted through a court order.

As a human rights activist, what issues are taking up most of your time? What projects are you currently working on?

There are too many things than I could mention! I have been trying to assist a few families of disappeared persons in their continuing struggles. I have been trying to engage critically with the proposed Office of Missing Persons (OMP). I have been monitoring and documenting recent abductions and arrests under the Prevention of Terrorism Act (PTA). I’m continuing to work with a few communities whose lands have been expropriated by the military. I am trying to critique militarized and large, business-oriented tourism, and to promote a more community-centered, reconciliation-oriented form of tourism. I’m also spending time discussing transitional justice issues with rural Sinhalese communities, and participating in radio and TV discussions in Sinhalese. In addition, I have been trying to support exiled Sri Lankan journalists and activists to return to Sri Lanka, and to support Pakistanis and Bangladeshis fleeing their countries and seeking refuge in Sri Lanka. Lastly, I have been giving talks and interviews, and have been writing about these issues.

In terms of the government’s wide-ranging transitional justice agenda, how much has been accomplished thus far?

Some political prisoners have been released, mostly conditionally. Some lands occupied for decades by the military have been released. Last year, there were significant judgements convicting soldiers for the rape of a Tamil woman in 2010 and a massacre of Tamil civilians in 2000.

There have been arrests of military and senior police personnel in some important and high-profile cases of killings and disappearances. The new leadership of the Human Rights Commission has asserted their independence and challenged the government, though an overhaul of the institution to be fully independent and effective will take much longer.

On the other hand, the military’s involvement in civilian activities in the North — such as hotels, shops, preschools, farms and airlines, among other activities, continues. Buddhist domination with the help of the military, in the predominantly non-Buddhist (mostly Tamil) North also continues. There has been an alarming rise of abductions and arrests under the PTA in the North and East during the last few months. Impunity reigns and accountability seems far away for tens of thousands of incidents, despite the availability of compelling evidence in some cases.

The positive progress is politically symbolic and matters a lot to ordinary people in their daily lives. But overall, progress has been too little and painfully slow. And there have been too many backward steps for the few forward steps.

How have public consultations (for the country’s transitional justice mechanisms) been going? What, if anything could be done to improve the consultative process?

Six months after the appointment of the Consultation Task Force (CTF), the consultations on transitional justice have commenced. But it seems the government has not thrown its political weight behind it, championing and promoting the process amongst Sri Lankans, using its vast infrastructure and extensive outreach through the mainstream and new media. The government doesn’t appear to be supporting the process financially, and it seems dependent on foreign funding from the United Nations (UN), which has resulted in delays.

In addition, the government had initiated a parallel process of drafting in secret, legislature in relation to transitional justice institutions, even before the consultation process started. There needs to be a convergence of expert drafting processes and popular consultations with ordinary people.

As it is, despite the best efforts of the CTF and subsidiary bodies, politically, the popular consultations appear to be an eyewash, designed to placate foreign governments and UN officials, and tick the box.

Do you believe that it’s important for Sri Lanka’s transitional justice process to include international participation? If so, why?

The reality in Sri Lanka is that most Tamils, who are a numerical minority, who have suffered the most, and who have historical grievances that led to the civil war, don’t trust a purely domestic process. Sinhalese who are the majority community, don’t trust international involvement. So if the transitional justice process is about all communities, we need to negotiate a middle way, acceptable to most communities and people. But there’s also a danger that the aspirations of the majority may prevail. Then there is also the issue of whether competency and experience to the extent needed is fully available in Sri Lanka.

Regarding the accountability mechanism to address alleged wartime abuses, what role (if any) would you like to see international actors play?

Personally, I believe it’s important to have the participation of international judges, prosecutors, investigators and defense lawyers. Their participation should go beyond monitoring, advising and training. But being international alone will not guarantee independence and credibility. It’s crucial to ensure that accountability mechanisms have the acceptance of all communities and thus, the government must play the major role in reaching out to all Sri Lankans — in particular to the Sinhalese-Buddhist community, to stress the importance of doing what’s right and principled, instead of bowing down to populist slogans. Tamil political and civil society leaders too must not get carried away with populist slogans and work towards solutions for affected people, considering the existing domestic and international political realities.

This interview has been edited for clarity.

Sri Lanka’s new Missing Persons Office and the Catholic Church

First published at http://www.ucanews.com/news/sri-lankas-new-missing-persons-office-and-the-catholic-church/76381 on 28th June 2016

Catholic priests are among the over 65,000 people who have been reported as disappeared in Sri Lanka. Included among that number are also many journalists, human rights activists, and the Vice Chancellor of Eastern University of Sri Lanka.

Father Jim Brown, a Tamil Catholic priest, disappeared on Aug. 20, 2006. He was last seen going into the navy controlled Allaipiddy area in the northern city of Jaffna. Wenceslaus Vimalathas, a lay associate who was with him, also disappeared.

Father Brown had tried to protect civilians during heavy fighting between the Sri Lankan army and Tamil rebels by offering them shelter in a church. It didn’t work. Many civilians were killed and injured when the church was eventually attacked. Father Brown had pleaded with the navy to take the injured out of the fighting zone but was reportedly rebuffed.

Father Francis Joseph, another Tamil Catholic priest, also disappeared. He was last seen being taken away by the Sri Lankan Army in Mullaitivu on May 18, 2009, the last day of war.

He had brokered the surrender of some rebel Tamil leaders in return for assurances of their safety. But those leaders too disappeared and their Habeas Corpus cases have dragged on for several years in the courts.

Till the late 1980s, most of those disappeared were Sinhalese. Since then, the majority have been Tamils. Muslims also have disappeared, including Pattani Razeek, a good friend of mine. Razeek was one of the few whose body was found.

Groups led by Catholic priests and nuns in the predominantly Tamil-Hindu areas in the North and East have been documenting disappearances, supporting families, and raising their voices against the crimes and the culture of impunity. But these are exceptions. Most church leaders have stayed silent. Why?

Those that have campaigned against the disappearances have faced intimidation, threats and arrest. A Catholic priest and myself were arrested in 2014 for investigating the disappearances. A few months later, a private discussion between affected families, activists and diplomats at a church-run center was disrupted by a mob led by Buddhist monks. The police refused to assist us.

Successive governments have set up numerous bodies to address the disappearances. Affected families and activists have engaged with them more out of desperation than good faith. But truth, justice, and reparations have been elusive.

The latest government effort has been to establish an Office of Missing Persons (OMP). It was one of the significant commitments the government made when they co-sponsored the U.N. Human Rights Council resolution on Sri Lanka last October. But the development of the O.M.P has been shrouded in secrecy with very little consultation, despite promises made to the contrary.

Father Brown’s distraught mother passed away without knowing what happened to her son, and his lonely father has told me that his only hope is to hear news of his son before he dies. Families whose breadwinners have disappeared need financial and material support, while others continue to demand justice.

To fulfill such expectations, the OMP will have to be more victim centered, transparent, independent and a well-resourced office, which will also facilitate the rights of families to reparations and justice, along with the right to truth. There are still opportunities to do this by influencing the draft legislation to establish the OMP, which awaits parliamentary approval.

But this may only happen if families, activists and U.N. officials make strong demands. Church leaders should also join such efforts, demanding truth and justice for those like Fathers Brown and Joseph.

Ruki Fernando is a human rights activist and consultant to the Justice, Peace and Integrity of Creation Commission of the Conference of Major Religious Superiors in Sri Lanka. He is also a member of the Asia-Pacific chaplaincy team of the International Movement of Catholic Students.

Sri Lanka’s 65,000 Disappeared: Will the Latest Missing Persons’ Office Bring Answers?

First published at http://thewire.in/2016/06/14/sri-lankas-disappeared-will-the-latest-missing-persons-office-bring-answers-42687/ on 14th June 2016

There is still a possibility to make the Office of Missing Persons an institution that can provide some degree of truth, justice and reparations to families of disappeared.

A few days ago I was with Mauri Inoka, whose husband disappeared in September 2013. She was protesting on the pavement of a major road in Colombo, close to the presidential secretariat, sweltering in the heat, with her twin children, aged about two-and-half years, born just two months after their father disappeared. The children seemed tired, hungry and thirsty, and cried most of the time. Their mother tried to console them and spoke with determination to the media personnel interviewing her, while the policemen tried to make her give up the protest. But later, after being compelled to talk to the same officials who had made empty promises at the presidential secretariat one year ago, and after the journalists and police left, Inoka also broke down and cried.

Inoka claims that the police are complicit or have information about her husband’s disappearance. Her complaints to the police, Human Rights Commission of Sri Lanka, and the former and present president have not yielded any answers for 1,010 days. She almost lost her job. They were often scared, homeless, hungry, displaced by floods and dependent on the occasional support that a few family members, friends, and activists could offer. Inoka was threatened several times not to pursue the case of her husband’s disappearance and was also abducted and dumped on the roadside.

Disappearances

In the late 1980s, most of those disappeared were Sinhalese, like Inoka’s husband. Since then, the majority of those who disappeared have been Tamils. Muslims also have disappeared, such as my friend and colleague Pattani Razeek. Razeek was one of the few whose body was found after he disappeared. Some suspects have been arrested, but his family believes the master minds are free and no one has been charged. Razeek’s son regularly calls me seeking help to ensure justice for his father.

In August 2006, Father Jim Brown, a Tamil Catholic priest and his assistant, Vimalathas disappeared. They had gone into a navy held area, after signing in at a navy checkpoint in Allaipiddy, Jaffna. Brown had offered shelter to people in his church to save them from bombs and shells, during heavy fighting but many civilians were killed and injured inside the church. Brown survived and had later pleaded with the navy to take the injured out of the fighting zone. He was reportedly threatened by a navy officer, and there were reports that the navy had refused orders of the magistrate to hand over the log book at the checkpoint.

They are amongst the 65,000 Sri Lankans reported to have disappeared. In the 36 year old history of the UN’s working group on disappearances, it’s the second largest case from Sri Lanka.

Eyewitness testimonies and other available evidence indicate that the Sri Lankan state – particularly its army, navy and police may be responsible for most disappearances, in the context of counter-terrorism operations mainly. The evidence also indicates that the Liberation Tigers of Tamil Eelam (LTTE) is also responsible for many disappearances, especially during the last stages of the war.

Ironically, amongst the families of the disappeared that I have worked with, is a mother of an air force officer who had gone missing and a wife of a LTTE leader who had disappeared after surrendering to the army, along with hundreds of other LTTE leaders. About 5,000 soldiers from the Sri Lankan armed forces are also believed to be missing in action.

State role 

Families of the disappeared and the activists have faced numerous threats, intimidation, restrictions, surveillance, arrests and detention as they campaigned for truth and justice for the disappeared. In December 2011, Lalith and Kugan, campaigners against the disappearances, disappeared. In March 2014, Jeyakumary, a Tamil mother seeking truth and justice for her son, whose photo had been seen in a government-run rehabilitation facility, was arrested.  A colleague and I were also arrested when we went to investigate it. All three of us are still terrorist suspects with pending cases against us. In August 2014, when I was attending a private discussion between some families of the disappeared with lawyers, activists and diplomats, a mob led by Buddhist monks invaded the private church run building and disrupted the meeting. The police refused to intervene or provide protection. Families of the disappeared were stopped twice from coming to Colombo from the north to hand over petitions during the previous regime.

Successive government have set up many bodies to address disappearances, and families of the disappeared and activists have engaged with them, sometimes in good faith and sometimes in desperation. But truth, justice and reparations have been elusive.

A commitment the present government made through co-sponsoring the UN Human Rights Council resolution, was fulfilled last month with the ratification of the International convention against disappearances. The government, however, barred Sri Lankans from making complaints to the committee monitoring the implementation of the convention by not recognising article 31. Another commitment in the UN resolution was to establish an Office of Missing Persons (OMP). The commitment to enact a domestic law making disappearances a crime in Sri Lanka has not been fulfilled and there is no timeline for this, though it is crucial for disappearances to be criminalised before the OMP is established.

OMP as an institution

The OMP was one of the four focuses of the consultation task force appointed to conduct consultations on transitional justice. But instead of consulting people, the government relied on a secret process to come up with a draft bill to establish the OMP. After about eight months, almost at the end of the drafting process, the foreign ministry held a hastily convened de-briefing for few activists. Due to insistence of activists, another de-briefing for few families of the disappeared was held ten days later. Both were in Colombo. Four days later, the draft bill was approved by the cabinet. Technically, the bill can still be amended before it is passed into law by the parliament, but it seems unlikely that it will be changed substantially.

The draft bill is promising with concern to the right of the families to truth, with no restrictions on temporal or geographical restrictions, clauses guaranteeing anonymity for witnesses, opportunities for international expertise, powers to summon any person and obtain documents and other materials, make unannounced visits to relevant places, seek search warrants and court orders for exhumations. The office will also have branch offices.

The draft bill, however, doesn’t give the OMP prosecutorial authority and this may hamper the possibility to offer plea bargains, immunity in exceptional circumstances and other forms of incentives to elicit information.

The draft bill is vague. Gender and ethnic composition is not specified. There is no provision to include families of the disappeared in the most senior oversight body. There is no requirement for the appointing authorities to give time and opportunities to families of the disappeared and others to comment on nominees or make nominations. The regularity to provide information to families is not specified and it’s not obligatory to provide maximum information to families.

The right to pursue justice is compromised by the OMP not having prosecutorial authority and being given the discretion to share or not share information with the external prosecutorial and judicial bodies. There is no provision to ensure that tracing investigations will be done in tandem with criminal investigations or that the OMP will ensure information and evidence discovered will be treated with best international criminal investigation standards, to enable them to be admissible during any subsequent prosecutions.

Justice and aid 

At the moment, there are no initiatives to ensure economic justice for the families or offer any financial and material assistance in the form of interim reparations. The right of the families to reparations has been relegated to an Office for Reparations, a totally separate entity, which is likely to take a long time to establish. Some of the families, whose breadwinners have disappeared, may not even be able to engage with the OMP because of extreme poverty.

Procedures and obligations to deal with identified or unidentified human remains are weak in the present draft bill. At the only opportunity they had before the cabinet approval, some families of the disappeared appealed to change the name from “missing” to “disappear”. But despite promises to consider it, the name remains unchanged.

The distraught mother of Brown passed away without knowing what happened to her son. His lonely and ageing father’s only hope is to hear news of his son before he dies. Inoka desperately needs support for housing, education and food for her children, so that she can continue her struggle for truth and justice. Many families don’t have adequate financial, emotional and legal support and accompaniment to strengthen their struggles. I have often struggled and ended up frustrated trying to mobilise support for families of the disappeared, amongst politicians, journalists, artists, lawyers, activists and the general public.

At least one person was abducted by the dreaded “White Van”, a symbol of disappearances in Sri Lanka, last April. He was later found in police custody. The discovery of explosives and suicide jacket near Jaffna had led to new wave of arrests of some Tamils from the north and east since the end of March, under the draconian and much abused Prevention of Terrorism Act, which the government has promised to repeal. Torture and lack of due process has been reported in relation to some of these arrests.

The above context, and lack of consultations and sensitivity to ideas of families of disappeared in creating the OMP and the limits in the draft bill has created an environment of suspicion about it. There is still a possibility to make the OMP an institution that can provide at least some degree of truth, justice and reparations to families of disappeared, rather than giving more agony and trauma. But it will require principled commitment from politicians, sensitivity of the general public and lot of work from families themselves and those supporting them.

Ruki Fernando is a Sri Lankan human rights activist who worked with families of the disappeared, and was involved in documentation, campaigns and advocacy in relation to the disappearances. He is a member of Watchdog Collective, Advisor to INFORM Human Rights Documentation Centre in Colombo.

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).