Asian Human Rights Commission

Three Commissions created by the Sri Lankan government have established the disappearances of 16,742 people. While the claim that the number of disappearances is actually much larger needs to be further investigated, the immediate issue now is: What conclusions can be drawn from the facts already established?

It should be underlined that those listed as disappeared in the Commission Reports do not include people killed by the rebel groups. The disappeared listed in the Reports include only people who were arrested by the law enforcement agencies and went missing thereafter. Thus, the issue is entirely one of the responsibility of state officers, even if some state agencies sometimes may have used people who did not belong to their agencies to carry out the disappearances.

According to a statement issued in early September 1998, the only approach proposed by the government thus far is to prosecute the people responsible for the disappearances, a large number of whom have been identified. Even if many people involved in the disappearances are identified, however, they would only be a fraction of those who have caused the disappearances of 16,742 people. This is because the approach presently adopted treats criminal involvement too narrowly: it only includes those directly responsible for the disappearances using direct criminal liability as the sole basis of liability.

A very important aspect, however, that needs to be considered is implied liability on the basis of the vast number of proven cases of disappearance. Implied liability arises both from acts of commission which contributed to causing disappearances and from acts of omission which failed to prevent disappearances from occurring. The responsibility for acts of both commission and omission rests primarily on the government of the time. The government of the time cannot claim any valid defense in this regard; neither causing the disappearances nor failure to prevent them can be justified in any way. Even in an insurgency, causing disappearances is not a legally valid combat tactic.

In addition to the government's criminal liability, which arises solely from the fact of the disappearances themselves, there are other factors adding to the gravity of these cases. These include acts of conspiracy to cause these disappearances; acts of encouragement of these disappearances; acts to supervise the carrying out of these disappearances; and acts of failure to divulge information regarding these disappearances. Thus, the liability for these disappearances would spread to include leaders of the former government, regional leaders of the former government, higher officers of the law enforcement agencies and higher regional officers of the areas where the disappearances have taken place.

The primary consideration in dealing with these disappearances should be to create a political and social agreement to avoid the occurrence of disappearances in the future. This is an even more urgent need, as there are complaints that about 600 people on the Jaffna Peninsula have become missing since its capture by government forces in December 1995.

It is not possible to restore confidence in the state's willingness and determination to control its law enforcement agencies without taking serious action regarding the large number of disappearances that have been established. Furthermore, the law enforcement officers themselves need to be convinced of their criminal liability. Law enforcement officers could claim that they have been unfairly treated, however, if the politicians who were the architects of the policy causing these disappearances remain immune to criminal liability.

The public has a right to know the complete details of how such a vast number of disappearances took place in the country. This is especially true for those among them who are surviving family members of those who disappeared. Full disclosure of the entire process may help society, particularly those directly concerned, to feel that justice has been done at last and to believe that the justice system may recover from the deep decline it has been suffering because of the disappearances.

Whether the suitable mode of justice in this instance is one of direct criminal trials or one similar to the Truth Commission in South Africa is left for the present government to decide in consultation with the people. Revenge is not the driving force for such prosecutions. Establishing justice against gross injustice, recreating confidence in the system of justice and helping people and society arrive at genuine reconciliation are the primary considerations. It is quite likely that many police officers would come forward to reveal atrocities committed at the time if they were given the opportunity and the protection. In an earlier issue of Human Rights Solidarity (November 1996, Volume 12), we reproduced the translation of a confession along with a long poem written by a senior police officer about the incidents at the time that these disappearances took place.

Recommended Action

To assist the people of Sri Lanka in this process, you are encouraged to write letters to the government of Sri Lanka and the U.N. Rapporteur on Enforced and Involuntary Disappearances, asking them to take urgent action on this matter. If you would like, you may use the sample letters below or write similar letters to the following addresses:

Your Excellency:

We have learned of the findings of three Commissions of Inquiry into the disappearances which have taken place in your country. We are shocked to hear that 16,742 people have disappeared and the claim by other agencies that the number is, in fact, much larger. While we have been saddened by such a large number of gross acts of inhumanity, we are concerned about further complaints of disappearances which have happened in recent times. We would request that action be taken on the basis of the Reports of these Commissions to bring to justice all who have been involved in causing these disappearances. We hope by genuinely redressing the grave wrong done to these people and their families that peace can be restored to your country.

Dear Mr. Tosevski/Ms. Robinson:

You are aware of the findings of the three Commissions in Sri Lanka which have established the disappearance of 16,472 people. We urge you to take suitable action to bring to justice all of the people who were involved in these actions.