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Forced Disappearances in Sri Lanka Constitute a Crime Against Humanity

Laura Black

(B.A. in Economics - Bucknell University
Law Graduate - Harvard University)

I. Executive Summary

This paper has two purposes. First, it argues that the enforced disappearances, murder, and torture that occurred in Sri Lanka constitute a crime against humanity. And second, it argues that an international tribunal must be established to address these atrocities because the legal system within the country is currently incapable of effectively prosecuting these crimes.

The actions that occurred in Sri Lanka clearly constitute crimes against humanity.

For an action to constitute a crime against humanity, several requirements must be met: it must be one of a limited number of crimes generally considered to warrant the label; it must be widespread or systematic in nature; and it must involve the government. The crimes against humanity enumerated in international instruments include murder, torture, enforced disappearance, extermination, arbitrary imprisonment, and persecution on political grounds. Each of these crimes was committed in Sri Lanka. Mass graves, torture chambers, illegal detention centers, testimony from the families of thousands of missing persons, and the government's goal of removing political opposition testify to it.

Furthermore, these crimes were committed on a widespread scale. The Sri Lankan government has estimated that there were over 26,000 victims, while unofficial estimates put the number as high as 60,000. It is also clear that these crimes were part of a systematic attack planned at the highest levels of government and implemented through the police and army. There can be no doubt that a crime against humanity has occurred.

Despite the seriousness of the crimes and the enormous number of victims, these crimes against humanity have not been effectively addressed. The entire legal system was used in the campaign of disappearances making internal prosecution impossible despite the efforts of the new government. The fact-finding commissions established by the government have uncovered information on appalling atrocities, but little action has been taken. Similarly, the interventions that UN agencies have made thus far have proven insufficient. More decisive action is required.

To address these crimes effectively, an international tribunal must be established. Both the seriousness and the number of offenses warrant such an approach. Recently, the International War Crimes Tribunal in The Hague sentenced a former Bosnian Croat general to 45 years in prison for the deaths of 100 people. The deaths of 30,000 Sri Lankans are no less valuable. Only with greater international assistance, preferably in the form of establishing an international tribunal, can the perpetrators be brought to justice and a sense of law and order restored in Sri Lanka.

II. Foreword: undisputed facts

It should be highlighted at the outset that these facts are not disputed by the government of Sri Lanka. Most of the disappearances occurred under a former government, and after a new government came to power, it established several fact-finding Commissions of Inquiry into the Voluntary Removal or Disappearance of Persons. The information here is drawn from the Interim Reports and Final Reports of these Commissions. [1]

  1. Forced disappearances in Sri Lanka constitute a crime against humanity

A. The situation in Sri Lanka is deplorable

The enforced disappearances in Sri Lanka present a uniquely abhorrent factual situation:

  • A large number of disappeared persons: estimates range from 26,877 to 60,000persons
  • A large number of child victims: approximately 15% of victims were children below the age of 19
  • Involvement at the highest political levels: the entirety of the legal enforcement mechanism was utilized
  • The methods utilized: illegal detention and torture centers
  • The purpose of the enforced disappearances: extrajudicial killing and elimination of evidence

The disappearance of tens of thousands of people in Sri Lanka was not a campaign by a hostile foreign enemy, nor was it part of a bloody civil war or revolution. It was a campaign by a democratically-elected government to remove opposition. The victims need not have even been involved with insurgents, attending a meeting or a speech, or even reading a book, was sufficient to be targeted for extrajudicial killing. Many of the victims were outside the insurgency movement; some victims were simply members of legally recognized opposition parties. Many were just children.

The police and army came for the victims not only at night, but at any time of the day.[2] Sometimes, the victims were abducted by men who came in unmarked cars and acted with impunity. Sometimes, the victims were arrested for questioning and subsequently disappeared, what may be called "voluntary removal." In the town of Trincomalee, residents were told to report to a stadium one morning, and police then picked certain persons out of the crowd, blind-folded them, and transported to Plantain Point Army Camp. One victim who was released told of the torture; other victims were never heard from again, despite inquiries by their families. [3]

As this example illustrates, the victims in Sri Lanka were not only abducted, but were normally murdered and often tortured as well. A commission established Sri Lanka stated, "Disappearance is in our finding only a euphemism for a killing, a reality that the absence of recovery of the body should not be allowed to obscure." [4] In fact, death certificates have been issued for persons where the Commission has been satisfied that they had been involuntarily removed, and compensation has been paid to the victims' families.[5] Many of the bodies have been recovered, however, in over a dozen mass graves.[6]   There have also been instances of mass executions. A well-known instance is the massacre at Mahawatte, Kandy, where at least 54 persons were killed in one night.

Many of the bodies showed signs of torture. In some cases, the government sought to have the fact of torture be common knowledge. Disfigured heads and bodies were displayed openly to serve as a warning to the public. Such atrocities became commonplace. [7] The existence of at least eight such torture chambers was discovered by a Commission investigating disappearances in four provinces. [8] At a torture chamber at St. Sylvester's College in Kandy, evidence showed that about 1,000 persons were detained in this camp and systematically tortured before being taken away and killed. [9]

Perhaps most disturbingly, 15% of victims were children below the age of 19.[10]

The ruling party has a perception that the JVP targeted outstanding youth at the village level, and this perception was enough to cause the government to indiscriminately eliminate outstanding youth at the community level. The police and army would sometimes take young girls in place of fathers, and often children were abducted and killed along with their parents. Sometimes, the motives were personal, as in the abductions of young girls for sexual abuse, and the breakdown of the system allowed officials to act with impunity.[11] Any assertions by the government that their actions were compelled by an interest of self-defense and a need to maintain control against insurgent Janatha Vimukthi Peramuna (JVP) appear ludicrous in the face of slaughter of children. [12]

These acts of violence were perpetrated on the authority of the government, and involved the entire legal enforcement machinery. Leading politicians, such as a Chief Minister of a Province and a Cabinet member on the government, have been named as playing a part in removals.[13] Two senior officials, one from the police and one from the army, have testified under oath of the role played by politicians of the governing party preparing "lists" of names for executions.[14] A Commission established by the government stated that it was of the opinion that the disappearances/killings of these persons have been with the knowledge and tacit approval of the Government in power at that time.[15]

The widespread government involvement can be seen in the impunity with which the police acted, and the existence of multiple illegal detention and torture centers. The abductions often occurred during the day with men taking victims away in unmarked cars. Mourning families filed missing person reports and made personal pleas at the homes of government officials for information on their loved ones, all to no avail. One father stated, "I went to the police 76 times, but we were driven away like dogs."[16] Cases of disappearances were dismissed without criminal investigation. [17]

Although not as common as in the late 1980s, disappearances continue today. And despite government commissions appointed to study the disappearances, most of the perpetrators have not been put to justice. The international community must act on this crime against humanity.

  1. The actions of the government constitute crimes against humanity

1. Comparison to other crimes against humanity

Other recently condemned violations of human rights pale in comparison to the widespread nature of the atrocities in Sri Lanka:

  • The International War Crimes Tribunal in The Hague recently sentenced Former Bosnian Croat general Tihomir Blaskic to 45 years in prison for his key role in an incident where more than 100 people were killed. [18]
  • The Düsseldorf High Court last year sentenced former leader of a paramilitary Serb group Nikola Jorgic to life imprisonment. He had been convicted in 1997 of eleven counts of genocide and 30 counts of murder. [19]
  • The British House of Lords recently ruled that Former Chilean dictator General Augusto Pinochet could be extradited for the crimeof torture. The total number of dead or disappeared was 3197, but Pinochet benefited from immunity as head of state for almost all of the crimes committed under his regime. [20]

Despite the much larger number of victims in Sri Lanka than in any of these incidents, the disappearances there have not attracted the same amount of international attention and outrage. This is especially inexplicable when seen in light of the similarities with the case of General Pinochet. Both situations involved large-scale disappearances, torture, and murder at the hands of government officials. However, whereas there were about 3000 victims of the Pinochet regime, there have been over 30,000 in Sri Lanka. Although he has yet to stand trial due to his physical condition, the case of General Pinochet of Chile has aroused a level of international attention that the case of disappearances in Sri Lanka has lacked. The enforced disappearance of approximately 30,000 must be treated and addressed like the crime against humanity that it is.

2. Legal basis for crimes against humanity

The disappearance, and attendant torture and murder, of tens of thousands of people in Sri Lanka constitutes a crime against humanity. Both common sense and international precedent dictate this result. As discussed in further detail below, the crimes against humanity which occurred Sri Lanka include

  • Murder;
  • Torture;
  • Enforced disappearance of persons;
  • Extermination;
  • Imprisonment or severe deprivation of physical liberty in violation of fundamental rules of law (arbitrary imprisonment); and
  • Persecution on political, racial, religious or ethnic grounds.

The occurrence of one of these crimes, however, does not automatically make it a crime against humanity.

For any of these actions to be considered a crime against humanity, two basic elements must be shown:

  • Widespread or systematic nature and
  • Government involvement.

For example, the Rome Statute of the International Criminal Court defines "crime against humanity" as one of a number of specified acts "when committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack." [21] Similarly, the Draft Code of Crimes Against the Peace and Security of Mankind defines "crime against humanity" as one of a number of specified acts "when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group." [22] A somewhat more restrictive definition can be found in the Resolution Concerning the Establishment and Statute of the International Criminal Tribunal for Rwanda, which defines "crime against humanity" as one of a number of crimes "when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds."[23]

The activity in Sri Lanka clearly meets the standards, whether broadly or narrowly defined. The disappearances were certainly widespread in scale, as they involved tens of thousands of people, and were systematic as well. A report produced by one of the commissions established in Sri Lanka states that

The common features of the narration by thousands of humble petitioners in respect of thousands of abductions and disappearances bore powerful witness to the fact that what we were looking at was an orchestrated phenomenon and not a series [of] isolated instances explicable in terms of ‘excesses’ by individual transgressors.[24]

As discussed in the background facts section above, the disappearances were clearly orchestrated by the government against civilians. And, although some perpetrators took advantage of the lawless situation to commit crimes for personal reasons, the original motivation was political and most transgressions had this motivation, as required by the Statute for Rwanda.

To be considered a crime against humanity, a crime must be sufficiently serious in degree and be enumerated in the relevant convention. Reiterating the list above, the crimes against humanity that are relevant to the situation in Sri Lanka include murder; torture; enforced disappearance of persons; extermination; imprisonment or severe deprivation of physical liberty in violation of fundamental rules of law (arbitrary imprisonment); and persecution on political grounds. Any of these crimes individually could constitute a crime against humanity. The occurrence of several of these crimes compounds the urgency with which the Sri Lankan situation must be addressed.

a. The crime of murder

Murder is one of the original crimes against humanity, dating from the Nuremberg Charter.[25] The Principles of the Nuremberg Tribunal provides that certain crimes are punishable as crimes under international law as crimes against humanity:

Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crimes." [26]

Initially associated with crimes committed during times of war, crimes against humanity have now become autonomous crimes. [27] The Statute of the International Criminal Court, [28] the Statute on Rwanda,[29] and the Draft Code of Crimes Against the Peace and Security of Mankind [30] all list murder as a crime in its own right, dissociated with crimes against peace and war crimes. There is no doubt that crime of widespread and systematic murder was committed in Sri Lanka, as evidenced by the mass graves and the discovery of thousands of bodies.

Not only have crimes against humanity become independent crimes, the types of actions that constitute crimes against humanity have expanded since Nuremberg. Acknowledging this expansion, the Commentary accompanying the International Law Commission Report concerning the Draft Code of Crimes Against the Peace and Security of Mankind states:

The definition of crimes against humanity combined in article 18 is drawn from the Nürnberg Charter as interpreted and applied by the Nürnberg Tribunal, taking into account subsequent developments in international law since Nürnberg.[31]

Crimes such as torture and enforced disappearance, discussed in depth below, have also become crimes against humanity. [32]

b. The crime of torture

Torture is one of the most established crimes against humanity and is defined as a crime against humanity in the Statute on Rwanda[33] , the Draft Code of Crimes Against Peace[34] ,and the Statute of the International Criminal Court. [35] The Statute provides this definition of "torture":

"Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.[36]

The evidence that torture was committed is plentiful: eyewitness testimony from persons who were released after detention; the discovery of torture centers; and physical evidence on the bodies exhumed from mass graves as well as those on display as public warnings plainly showing the signs of severe physical pain and suffering. This pain and suffering did not arise from lawful sanctions. The disappeared persons were held illegally, and in any event, the physical abuse evident on the bodies is beyond what could be legally inflicted upon a prisoner. It is clear that the crime of torture was committed.

The crime of torture has recently received much attention due to the high profile accusations against General Augusto Pinochet of Chile and the recent case before the British House of Lords seeking his extradition to Spain. The House of Lords discussed the seriousness of the crime of torture. Lord Browne-Wilkinson quoted as follows from a case before the Tribunal for the Former Yugoslavia:

"Because of the importance of the values it protects, [the prohibition of torture] has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even 'ordinary' customary rules."[37]

Quoting an American court, the Lord continued

International law provides that offenses jus cogens may be punished by any state because the offenders are "common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution."[38]

The international community must take action to redress the crimes of torture in Sri Lanka.

Although the international crime of torture existed at a preeminent level even before enactment of the Convention, the Torture Convention provided an international system to prevent the torturer from escaping punishment.[39] The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture in much the same way as the definition in the Draft Code discussed above. [40] It also provides that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat or war, international political instability or any other public emergency, may be invoked as a justification of torture." [41] The government of Sri Lanka clearly violated the Convention Against Torture and no excuse is available for their actions.

International treaties as well as the Pinochet case clearly support the finding that torture was committed in Sri Lanka and that this torture constitutes a crime against humanity. The British House of Lords found that the atrocities committed under Pinochet, if proven true, would constitute crimes against humanity and violations of the Torture Convention, and a different determination by the international community concerning the disappearances in Sri Lanka would be completely unfounded.

c. The crime of enforced disappearance

Enforced disappearance, which forms the basis of the charges against the Sri Lankan officials, is also a crime against humanity and is defined as such in several international instruments. These include the Resolution on Rwanda, [42] the Statute of the International Criminal Court; [43] and the Draft Code of Crimes Against the Peace and Security of Mankind. [44] The Statute Of the International Criminal Court provides a definition, which is rather standard, for "enforced disappearance":

[T]he arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or political organization, followed by a refusal to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. [45]

The disappearances in Sri Lanka clearly meet these conditions. The victims were either abducted and detained, or arrested for questioning and then detained. Authorization and support came from several levels of the government. Families inquired about missing persons, but the police and government officials normally refused to acknowledge the abductions and always withheld information on their circumstances. The victims were also removed from the protection of law for prolonged periods of time, usually forever, in fact. The situation in Sri Lanka clearly meets the definition.

The Inter-American Convention on Forced Disappearance of Persons of the Organization of American States also provides support for treating disappearance as a crime against humanity. The Convention "[r]eaffirm[s] that the systematic practice of the forced disappearance of persons constitutes a crime against humanity" and "[c]onsider[s] that the forced disappearance of persons is an affront to the conscience of the Hemisphere and a grave and abominable offense against the inherent dignity of the human being." [46] This "reaffirmation" shows that treating disappearances as a crime against humanity is not a novel approach. The Convention defines forced disappearance in much the same way as the Statute of the International Criminal Court. [47]

Even before the instruments discussed above specifically labeled disappearances as a crime against humanity, there was support for such a notion. Although the Nuremberg Charter did not expressly enumerate enforced disappearances as a crime against humanity, the Tribunal convicted Wilhelm Keitel of this crime, invented by Adolph Hitler. [48] And the UN Declaration on the Protection of All Persons from Enforced Disappearances, written before the instruments discussed above, states that the "systematic practice of [enforced disappearance] is of the nature of a crime against humanity." [49]

The crime of enforced disappearance has always been a crime of severe magnitude, and is now firmly established as a crime against humanity. The facts surrounding the situation in Sri Lanka show that this crime was committed and must be treated as a crime against humanity.

d. Other crimes

Related to the crime of murder, yet a crime in its own right, is that of extermination. In addition to appearing in the Nuremberg Charter, extermination is also enumerated as crime against humanity in the Statute on Rwanda [50] and the Draft Code of Crimes Against the Peace and Security of Mankind. [51] The commentary in the International law Commission Report accompanying the Draft explains that extermination, by its nature, is directed against a group of individuals. It states

In addition, the act used to carry out the offense of extermination involves an element of mass destruction which is not required for murder. In this regard, extermination is closely related to the crimes of genocide in that both crimes are directed against a large number of victims. However, the crime of extermination would apply to situations that differ from those covered by the crime of genocide. Extermination covers situations in which a group of individuals who do not share any common characteristics are killed. It also applies to situations in which some members of a group are killed while others are spared.[52]

Large groups of people were rounded up and killed in Sir Lanka. Although perhaps not fully aware of the legal definition, government officials specifically discussed their goal of exterminating JVP " …You cannot do these things under the normal law. It takes a lot of time. By the time my good friends who are lawyers take time to solve these things the match will be over…We have finished the first eleven and the second eleven. Now we are tackling the under fourteen fellows. [53]

The crime of arbitrary imprisonment was also committed in Sri Lanka. After being abducted, the victims were normally kept in illegal detention centers in violation of all legal rights for varying lengths of time before their execution. The Statute on the International Criminal Court also includes "[i]mprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law"; [54] the Statute on Rwanda includes imprisonment in the context of widespread or systematic attack against civilian population on national, political, ethnic, racial or religious grounds; [55] and the Draft Code of Crimes against the Peace and Security of Mankind lists "arbitrary imprisonment" as a crime against humanity.[56] The situation in Sri Lanka satisfies all three instruments.

Finally, because the government's intent was to remove political opposition, the crime of "persecution on political, racial, religious or ethnic grounds" was committed in Sri Lanka. This has been characterized as a crime against humanity in the Nuremberg Charter, [57] Nuremberg Principles,[58] Statute on Rwanda,[59] and the Draft Code of Crimes Against the Peace and Security of Mankind. [60] The Draft Code explains that

The inhumane act of persecution my take many forms with its common characteristic being the denial of the human rights and fundamental freedoms to which every individual is entitled without distinction as recognized in the Charter of the United Nations (Articles 1 and 55) and the International Covenant on Civil and Political rights (article 2). [61]

The victims of disappearances in Sri Lanka were denied of every basic right, and were clearly persecuted. The crime of persecution provides yet another basis for calling the actions by the government in Sri Lanka a crime against humanity.

C. The actions of the government constitute gross violation of human rights

The disappearances in Sri Lanka must surely be classified among the "gross violations of human rights" condemned by Secretary General Kofi Annan. During last year’s Human Rights Commission meeting, he stated:

No government has the right to hide behind national sovereignty in order to violate the human rights or fundamental freedoms of its peoples. Whether a person belongs to the minority or the majority, that person’s human rights and fundamental freedoms are sacred. [62]

Although the statement was made in the context of dealing with minorities, the meaning is clear. Governments and their officials will be held accountable for the atrocities they commit against their own people.

D. The situation of child victims must be addressed

Although the actions in Sri Lanka obviously violate numerous other conventions relating to the rights of adults, [63] it is the violation of those conventions protecting the rights of children that is most disturbing. States are to extend particular care and assistance to children under international instruments such as the Convention on the Rights of the Child; [64] Declaration of the Rights of the Child;[65] Universal Declaration of Human Rights;[66] International Covenant on Civil and Political Rights; [67] and the International Covenant on Economic, Social and Cultural Rights.[68] In particular, children should not be punished or discriminated against based on status, activities, expressed opinions, or beliefs of family members.[69] Not only were children in Sri Lanka not given "particular care," they did not even receive the basic, minimum rights guaranteed to adults. Other provisions concerning children, such as those securing education and social security, have no chance of being attained in a climate where children’s lives are at risk.

Article 37 of the Convention on the Rights of the Child is particularly applicable. It provides that

  • "No child shall be subject to torture or other cruel, inhuman or degrading treatment or punishment";[70]
  • "No child shall be deprived of his or her liberty unlawfully or arbitrarily" and that the "arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time";[71]
  • "Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age"; [72] and
  • "Every child deprived of liberty shall have the right to legal and other appropriate assistance."[73]

Every one of these rights was violated by the forced disappearances and murders in Sri Lanka. The enforced disappearance and extrajudicial killing of thousands of children requires action by the international community.

IV. The situation in Sri Lanka requires action by the international community

A. Need for criminal investigation

Three commissions have been established within Sri Lanka, but to no avail. The commissions have made their recommendations, but no legislation has been considered for implementing them. [74] All three commissions have recommended a special prosecutor. However, this will be of little use because the two functions of investigation and prosecution are separate under Sri Lanka law, and the system is currently incapable of properly performing these investigations. The collapse of the integrity of the system has made accurate investigation of perpetrators impossible.

During the height of the disappearances, police did not carry out investigations due to the complicity of many police and government officials. Although control of the government has changed hands, many lower level officials and police officers still retain their positions. During a discussion of police involvement, several people commented to one of the commissions that being a good police officer invites trouble, and such officers become victims of unjust transfers and other forms of discrimination. Because people close to powerbrokers are appointed to various commissions, it becomes impossible to challenge an unfair transfer order. Even when officers have been transferred, the structural damage to the system has thwarted the search for the truth. Sasanka Perera, a university lecture, concluded, "People [the police officers] were transferred out, but the institution remained the same. Policemen did not know how to investigate." [75] The system has broken down to such an extent that the country is no longer able to investigate even normal crimes, let alone ones so serious as the disappearances.

The Sri Lankan justice system, as it exists now, is unable to handle adequately the criminal investigation and to foster a sense of justice among the population. One of the Commission reports states

Most of the Complainants do not seem to be interested in receiving compensation as much as seeing those responsible being punished. Some of such persons continue to be serving in the very same areas [,] some in higher positions than before. The anguish and anxiety of the complainants, who keep asking us what happened after the inquiry, is understandable as no action appears to have been taken against the persons whom they have mentioned as responsible at the inquiries before this Commission. [76]

The result of the government’s use of the entire legal enforcement machinery in its campaign of mass disappearances is a system that cannot recover without outside assistance.

B. Role of the international community

Action by the international community is needed at several levels. First, the United Nations Working Group on Enforced and Involuntary Disappearances can conclude that the disappearances are crimes against humanity and take action on this basis. In the past, the recommendations of the Commission concerning Sri Lanka have largely been ignored. The United Nations Working Group agreed in a 1999 recommendation to take up the issue of a criminal investigation, but little progress has been made. To resolve the crimes committed in Sri Lanka, the Commission must take a stronger and more active position, namely advocating establishing a tribunal.

The United Nations High Commissioner for Human Rights can also play a part in redressing these crimes by first seeking a mandate from the United Nations Human Rights Commission and the Security Council to proceed on the matter of disappearances in Sri Lanka on the basis that a crime against humanity has taken place. The Secretary General likewise can appeal to the Security Counsel for a tribunal to be established, both on the basis of the situation in Sri Lanka being a crime against humanity and a gross violation of human rights.

To establish a Tribunal, the United Nations can either get the consent of the Sri Lankan or get a resolution from the Security Council. The Sri Lankan government has shown a commitment to try these crimes, and should be amenable to allowing the United Nations to take control. The government has the desire to rectify the situation--it has made a commitment to both the United Nations and to the Sri Lankan people to bring the perpetrators to justice--but it needs assistance in restoring order within its legal system.

At this point, two alternatives are available: abandoning these cases without remedies or trying the cases under international law by a Tribunal established by the United Nations. When one considers the seriousness of the crime, however, only one alternative is viable. The victims of the disappearances were robbed of their most basic rights, were tortured, were murdered, and were even robbed of a proper burial. Their families have suffered the psychological trauma of not knowing what happened to their loved ones, and continue to suffer, along with the justice system of Sri Lanka, as long as the perpetrators go unpunished. The only solution is to establish an international tribunal and restore the system of justice in Sri Lanka.

 

Laura Black , the primary author of this piece, recently graduated, cum laude, from Harvard Law School. She also holds a B.A. in economics, summa cum laude, from Bucknell University.


1 The information in this paper comes primarily from the following reports: The Final Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Person in the Western, Southern and Sabaragamuwa Provinces (Sept. 1997) [hereinafter Final Report of Western]; Final Report of the Commission of Inquiry into the Voluntary Removal or Disappearance of Persons in the Northern & Eastern Provinces (Sept. 1997) [hereinafter Final Report of Northern]; and Interim Reports of the Commission of Inquiry into the Voluntary Removal or Disappearance of Persons in the Central, North Western, North Central and UVA Provinces (Sept. 1997) [hereinafter Interim Report of Central]. >Back to text
2 Final Report on Western, Chpt. 3, figure 3. >Back to text
3 Final Report of Northern, pp. 16-19. >Back to text
4 Final Report of Western, p. 27. Back to text
5 Interim Report of Central. Interim Report--II, pp. 5-7. Back to text
6 The Final Commission Report for the Western, Southern and Sabaragamuwa Provinces discusses the presence of twelve mass graves: the Hokandra Mass Grave; Essella School Mass Grave; Walpita Government Farm Mass Grave; Ambagahahenakanda Mass Grave; Bemmulla Mass Grave; Kottawekella, Yakkalamulla Mass Grave; Dickwella Mass Grave at Heendeliya; Diyadawakelle, Deniyaya Mass Grave; Wilpita Akuressa Mass Grave; Angkumbura Mass Grave; and Suriyakanda Mass Grave. Final Report of Western, p. 117. Two more mass graves have been discovered since the report was made: Chemmani Mass Grave and the Mamadala Mass Grave. "A Memorandum to the Working Group on Enforced or Involuntary Disappearances from Asian Legal Resource Centre, Hong Kong" (11 Feb. 1999), p. 17, ftnt. 13-14. >Back to text
7 Final Report of Western, p. 34. Back to text
8 "Torture chambers" existed at the following locations: St. Sylvester's College at Kandy; YMCA at Welimada; Community Centre (Praja Salawa) at Moneragala; Sudampaya at Anamaduwa; Hali Ela Motors at Badulla; Beragala Army Camp, Haputale; Paddy Marketing Board Stores at Walapane; and St. Ritas Camp, Nuwara Eliya. Interim Report of Central, Interim Report--VII, p 20. Back to text
9 Interim Report of Central, Interim Report--II, p.5 (internal citation omitted). Back to text
10 Final Report of Western, Chpt. 3, Table 4. >Back to text
11 Final Report of Western , p 122. Back to text
12 In light of a statistic that 14% of the disappearances involved children below the age of 15, Mrs. Muttetuwegama asked, "Can the war theory, which maintains that the police and military acted in self-defence, stand in the face of these naked statistics?" Interim Report of Central, Interim Report, p 15. Back to text
13 Interim Report of Central, Interim Report--IV, p. 11. Back to text
14 Final Report on Western, p 37. Back to text
15 Interim Report of Central, Interim Report--II, p. 7. Back to text
16 Final Report of Western, p 155. Back to text
17 Interim Report of Central, Interim Report--II, p. 4, pt. F ("When persons went to the Police Station to complain about the removals they were usually driven away and their complaints were not recorded.") and g ("complaints of abductions in most cases had been entered in the Minor Offenses Information Book of the Police Station"). Back to text
18 Blaskic was charged with trying to ethnically cleanse central Bosnia of Muslims. He was found guilty of all but one of 20 counts of crimes against humanity, war crimes and grave breaches of the 1949 Geneva Convention. "Hague tribunal sentences Bosnian general," and "General guilty of Bosnia war crimes," BBC News, available at <<news2.thls.bbc.co.uk/hi/english/world/europe/newsid%5F665000/665158.stm>> (visited 3/6/2000). Back to text
19 The Pinochet Precedent: How Victims Can Pursue Human Rights Criminals Abroad," Human Rights Watch (March 2000), available at << www.hrw.org/ campaigns/chile98/brochfn1.htm>> (visited 3/6/2000). Back to text
20 According to an official report by the civilian government that succeeded Pinochet, 3,197 people were killed or disappeared under his rule after he seized power in 1973 in a bloody coup against elected Marxist president Salvador Allende, available at << www.cnn.com/2000/WORLD/europe/03/02/pinochet.05/index.html >> (visited March 3, 2000); and House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen's Bench Division) (24 March 1998), available at <<www.parliament.the-stationery-office.co.uk/pa/ld/ldhome.htm>> (visited March 9, 2000). Back to text
21 Rome Statute of the International Criminal Court [as corrected by the procés-verbaux of 10 November 1998 and 12 July 1999], Part 2, Art. 7(1). "Attack against any civilian population’" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population pursuant to or in furtherance of a State or organization policy to commit such attack." Id. At Part 2(2)(a). Back to text
22 Draft Code of Crimes Against the Peace and Security of Mankind, International Law Commission Report, 1996, Chpt. II, Art. 18. Back to text
23 Resolution 955 Concerning the Establishment and Statute of the International Criminal Tribunal for Rwanda, S/RES/955 (1994), 8 November 1994 (Adopted by the Security Council at its 3453rd meeting, on 8 November 1994), Art. 3. Back to text
24 Final Report of Western, p. 32. Back to text
25 Charter of the International Military Tribunal at Nuremberg (1945), Art. 6(c). Back to text
26 Principles of the Nuremberg Tribunal, 1950, No. 82
Principles of Law Recognized in the Charter of the Nuremberg Tribunal in the Judgment of the Tribunal. Adopted by the International Law Commission of the Untied Nations, 1950, Principle VI (c). Back to text
27 International Law Commission Report, 1996, Draft Code of Crimes Against the Peace and Security of Mankind, Chpt. II, Commentary, Pt. 6 (citing, inter alia, Prosecutor v. Dusko Tadic, Decision of the Appeals Chamber on the Defence Motion for Interlocutory Appeal on Jurisdiction, p. 73 ("It is by now a settled rule of customary law that crimes against humanity do not require a connection to international armed conflict."); and Pinochet, House of Lords, opinion of Lord Browne-Wilkinson, (citing Oppenheim's International Law (Jennings and Watts edition), vol. 1, 996; note 6 to Article 18 of the I.L.C. Draft Code of Crimes Against Peace; Prosecutor v. Furundzija, Tribunal for Former Yugoslavia, Case No. 17-95-17/1-T), opinion of Lord Slynn, and opinion of Lord Millet. Back to text
28 Part 2 (1)(a). Back to text
29 Art. 3(a). Back to text
30 Art. 18(a). Back to text
31 International Law Commission Report, 1996, Chpt. II, Draft Code of Crimes Against the Peace and Security of Mankind. >Back to text
32 A recent article by Human Rights Watch also notes this expansion in the notion of crimes with universal jurisdiction. "The Pinochet Precedent: How Victims Can Pursue Human Rights Criminals Abroad," March 2000, Human Rights Watch, available at << http://www.hrw.org/ >> (visited 3/2/2000) ("Since the end of World War II, the list of crimes giving rise to universal jurisdiction has grown to include many atrocities committed within national borders, such as genocide, torture, 'apartheid' and other 'crimes against humanity.'"). >Back to text
33 Art. 3(f). Back to text
34 Art. 18(b). Back to text
35 Art. 7 (1)(f). Back to text
36 Art. 7 (2)(e). Back to text
37 Pinochet, House of Lords, opinion of Lord Browne-Wilkinson (page numbers not available) (citing Furundzija, Prosecutor v. Furundzija, Tribunal for Former Yugoslavia, Case No. 17-95-17/1-T, para. 153). Back to text
38 Id. (citing Demjanjuk v. Petrovsky, 776 F. 2d 571 (1985)). Back to text
39 Id. Back to text
40 Convention Against Torture and Other Cruel, Inhuman or Degrading treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 Dec. 1984 (entered into force 26 June 1987), Part I, Art. 1. Back to text
41 Id. at Part I, Art. 2(2). Back to text
42 Resolution concerning the establishment and statute of the International Criminal Tribunal for Rwanda, S/RES/955(1994), 8 November 1994 (Adopted by the Security Council at its 3453rd meeting, in November 1994. >Back to text
43 Rome Statute of the International Criminal Court [as corrected by the procés-verbaux of 10 November 1998 and 12 July 1999], Part 2, Art. 7 (1)(i). Back to text
44 Draft Code of Crimes Against the Peace and Security of Mankind, Art. 18. The Commentary noted that "[a]lthough this type of criminal conduct is a relatively recent phenomenon, the present Code proposes its inclusion as a crime against humanity because of its extreme cruelty and gravity." International Law Commission Report, 1996, Chpt. II, Art. 18, Commentary, pt. 15. >Back to text
45 Id. at Art. (7)(2)(i). Back to text
46 Inter-American Convention on Forced Disappearance of Persons (entered into force March 29,1991), Preamble, on deposit with OAS General Secretariat, available at <<http://www.cidh.org/basic.htm>> (visited on 3/9/2000). Back to text
47 The Convention provides:

For the purposes of this Convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.

Id. at Art. II. Back to text

48 Amnesty International- Report- EUR 45/01/99, "United Kingdom: The Pinochet Case--Universal Jurisdiction and the Absence of Immunity for Crimes Against Humanity (January 1999), p. 7 (citing Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the dissenting opinion of the Soviet Member)- Nuremberg 30th September and 1st October 1946, Cmd. 6964, Misc. No. 12 (London: H.M.S.O. 1946), pp. 48-49)) available at << www.amnesty.org/ailib/aipub/1999/EUR/44500199.htm >> (visited 2/16/2000). >Back to text
49 UN Declaration on the Protection of All Persons from Enforced Disappearances, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992) (adopted 18 Dec. 1992), Preamble, para. 4. Back to text
50 Art. 3(b). Back to text
51 Art 18(a). Back to text
52 International Law Commission Report, 1996, Chpt. II, Draft Code of Crimes Against the peace and Security of Mankind, Commentary Pt. 8. Back to text
53 Hansard, Sri Lanka, Volume 62 column 1249, proceedings of 25.01.90. Back to text
54 Part 2, (1)(e). Back to text
55 Art. 3 (e). Back to text
56 Art 18(h). Back to text
57 Nuremberg Charter, art. 6(c). Back to text
58 Nuremberg Principles, Principle VI. >Back to text
59 Statute on Rwanda, art. 3, Back to text
60 Draft Code of Crimes Against the Peace and Security of Mankind, art. 18(e). The Commentary to the Code also lists the Nuremberg Control Council Law No. 10, art. II, para. C, and the 1954 Draft Code, art. 2, para. 11, as providing that this crime constitutes a crime against humanity. International Law Commission Report, 1996, Chpt II, Draft Code of Crimes Agaisnt the Peace and Security of mankind, Art 18, Commentary, pt. 11. >Back to text
61 Id. Back to text
62 Press Release SG/SM/6949 HR/CN/898, "Secretary-General Calls for renewed Commitment in New Century to Protect Rights of Man, Woman, Child—Regardless of Ethnic, National Belonging" (7 April 1999). Back to text
63 See, e.g., > International Covenant on Civil and Political Rights, art. 10(1) ("All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."); and Body of Protection of all Persons under any Form of Detention or Imprisonment (adopted 9 December 1988), Principle 1 ("All persons under any form of detention or imprisonment shall be treated in a humane manner with respect for the inherent dignity of the human person.") Back to text
64 Convention on the Rights of the Child, Preamble (2 September 1990). > Back to text
65 Declaration of the Rights of the Child, Preamble (entered into force 20 November 1959). Back to text
66 Universal Declaration of Human Rights, art. 25(2) (entered into force 10 Dec.1948). Back to text
67 International Covenant on Civil and Political Rights, art. 23 and 24 (entered into force 3 January 1976). Back to text
68 International Covenant on Economic, Social and Cultural Rights, art. 10 (entered into force 3 January 1976). Back to text
69 Convention on the Rights of the Child, art. 2. Back to text
70 Art. 37(a). Back to text
71 Art. 37(b). Back to text
72 Art. 37(c). Back to text
73 Art. 37(d). Back to text
74 Interim Report of Central, Interim Report--VII, p. 18 ("There appears to be very little progress in implementing the recommendations of the Commission especially with regard to the action to be taken against persons against whom credible material indicative of such persons being responsible for the removals and/or disappearances, have been made available to the Commission.") Back to text
75 Human Rights SOLIDARITY, Asian Human Rights Commission, April 1999, vol 9 no 4. Back to text
76 Interim Report of Central, Interim Report--VII, p. 18. Back to text

 

Posted on 1999-01-01



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