RESPONSIBILITY FOR THE DISAPPEARANCES

This Commission is required to report on: “Whether there is any credible material indicative of the person or persons responsible for the alleged removals or disappearances”[1].

1.   The Material Available

This will be considered under:

A.   The material available with regard to individual perpetrators.

B.   The material available with regard to the category of perpetrators.

C.   The material indicative of the existence of a political dimension.

A    The Material Available with Regard to Individual Perpetrators

According to the available evidence, the cases inquired into could be placed in three categories:

(a)   Where there is credible material indicative of the person or persons responsible to warrant

        further investigations for the purposes of legal proceedings.

(b)   Where the material available is insufficient to warrant further investigation for legal

        proceedings.

(c)    Where there is no material whatsoever to identify those individual perpetrators.

Accordingly, we are submitting to Your Excellency under separate cover lists of names of individuals in respect of whom THERE IS CREDIBLE MATERIAL indicative of their responsibility for disappearances of certain persons. Since we have not recorded the evidence of the persons against whom there are allegations, the lists are not part of this Report[2]. Until further investigations by the Investigative Authorities are held, CONFIDENTIALITY must prevail, both in respect of the nature of the material available and in respect of the identity of the persons implicated by such material.

This list submitted to Your Excellency is sub-divided into four parts:

(i)   Names of persons who are credibly implicated in three or more incidents

       inquired into by this Commission - 37 persons

(ii)   The names of persons thus credibly implicated in respect of two

        incidents inquired into by this Commission - 37 persons

(iii)   The names of persons who are credibly implicated in respect of one

         incident inquired into by this Commission - 207 persons

(iv)   Name of persons credibly implicated on the findings of more than one

         Commission[3]. - 22 persons

In view of the serious nature of the acts revealed by the evidence available to date, your Commissioners recommend that:

·         the investigations by the IGP should be under the supervision of the Attorney-General, and

·         the determination of the appropriate legal proceedings should be by the Attorney-General.

B   The Material Available with Regard to the Category of Perpetrators

In the 4,473 cases where disappearance has been proved, the identification by the petitioners of the category of perpetrators responsible was as follows:

·         Agents of the State/paramilitary groups in collaborations with them;

·         Subversive groups;

·         Personal enemies;

·         Unknown persons.

Some of the main factors on which petitioners based their identification of the category of those responsible were:

·         Factors Specific to the Disappeared Person

His anti-Government political affiliation was the main operative factor, irrespective of whether the party concerned was lawful or unlawful. At least 680 cases of abductions or disappearances could be conclusively attributed to the participation of such persons in legitimate political activities.

An evasion of earlier searches for him either by the agents of the State or by the subversives, his refusal to identify himself with the political structure at village level whether pro-Government or subversive, that he held public office or was a Government employee or a family member of a member of the security forces or had asserted his right to vote or contest at elections, were among the prevalent factors[4].

·         Factors Specific to the Perpetrator such as a Personal Animosity towards the Disappeared Person

Some examples are:

One Mrs K. S. W. related to this Commission how a Police informant had made use of the Kundasale Police to destroy her husband and three sons due to a previous enmity with them. A party in police uniform including the OIC and the informant Mr K had abducted her husband and three sons on 11 September, 1989. Thereafter the OIC Kundasale and Police party returned to the village with two of her sons and two others, set fire to their house and took away her sons. That was the last time she saw her sons alive. She says that the corpse of one was found at Pinthaliya Junction and the other at Wedige junction. There was no information about her husband.

In another case the petitioner stated as follows:

        “My son was a University student and was staying at the University hostel. He used to visit us every week.  After his visit in early May, 1989, he did not come home            as usual.  On inquiry at the University Hostel the Warden informed me that my son was missing and that his name is among the seven missing from that Hostel.”

There were many such cases.

In these instances, the petitioners were clearly aware that what had happened went far beyond what could be attributed to a breakdown of relations between the particular perpetrator and the victim. While seeking to identify the person who had been the immediate link in bringing the “system” into operation against them, they described the prevalent situation graphically and in concrete terms.

·         Factors Specific to the Times

The corpus was taken at a combing–out operation by the security forces, or modern weapons and vehicles were used in the incidents of abduction, or he was killed for defying an “unofficial curfew” declared by the subversives.

In the period under review, the modus operandi was a general indictor of the agency involved[5].

The subversive act was destruction, usually a killing, of a person in as public a manner as possible. The corpse would be left identifiable bearing several ante–mortem injuries of a brutal nature and a placard displayed bearing a message such as “Death to Informers”. There would usually be instructions that the body be buried without ceremony and the acts of respect to the dead usual in our society.

The technique of abduction and disappearance adopted by the forces was of a different nature.  While the abduction would be done very publicly, the re-emergence of the body, if at all, would be in a mutilated state that made its identification difficult[6]. When these bodies were left in public places they were not accompanied by a claim as to who the perpetrators were. Ironically, the very absence of a claim and the very attempt to prevent identification of the body came to be an easily identifiable “trademark” of the perpetrator.

In the South, there were only a few abductions at the hands of subversives, and in most instances they were involved in killing, whereas the Government agencies were mostly involved in abductions. However, in the North and East, both subversives, including the LTTE, and the State agencies, were involved in abductions and disappearances. Public killings and the display of bodies with placards stating the so-called reason for the killings continued to be a practice of subversives in the North, too.

A notable special feature in the identification of the perpetrator involved in respect of the incidents in the North during the period from 1987 to 1995 was the absence of a police and military presence there. The Naval presence was confined to the sea and the Air Force was confined to Palaly. There were no foreign NGOs operating in the North during this period other than the UICRC[7]. The evidence placed before this Commission is that the “streets were littered with bodies” even as late as the first months of 1995.

A complainant described the situation as follows:

     “There was no Army or Police at that time [in Jaffna]. There were many bodies on the road those days. So many in my neighbourhood. The bodies were left to decay on the road.”

The perpetrators involved during this period was one or other subversive group, mainly the LTTE.

C   The Material Indicative of the Existence of a Political Dimension

The involvement of politicians of the ruling party in abductions and disappearances came to light in the evidence in many of the complaints inquired into by this Commission. These witnesses took the Commission into their confidence, disclosed the name of the politician concerned and described graphically the chain of actions starting from a veiled or direct threat by the politician himself. There were several instances where activists of legal political organisations would be abducted and made to disappear “as punishment” for not supporting the particular politician’s political party[8].

The spectacle of impunity conspicuous in this period gave rise to the public perception that such a spectacle could not have existed without the complicity of the political leadership. This was evident from the fact that no police station entertained complaints of disappearances.  “Lists” of names of political enemies were supplied to the security forces for elimination. The close participation of the local politician in such activities was apparent to the general public. There is also evidence that some abducted persons were confined in residences of politicians and had disappeared thereafter. In this regard, the role of the bodyguard has to be investigated. There is evidence that bodyguards of politicians participated in the abduction of certain persons who have now disappeared.

Responsibility of Armed Groups

The evidence before this Commission has thrown up in sharp relief the need for a recognition of the liability of armed groups for grave human rights abuses committed by them – a recognition as a “right” of the victims of these abuses, and not only a culpability arising from a breach of national criminal laws[9].

The right to pursue the establishment of liability, from the local to the international levels, inevitably follows the recognition of such a “right” in the victim(s). The full panoply of relief due for a breach of a “right” would also be available then to victims of armed groups[10].

Human Rights Law has developed in response to identified needs. Historically, its growth was in the context of the atrocities committed in World War II, so that in the drafting of the principal International Human Rights instruments, the atrocities addressed were those committed in an unbridled exercise of State power.  Additionally, generations growing up in the decades of anti–colonial struggle following on from World War II have tended to consider the actions of armed groups as taking place in the context of a struggle against a repressive imperialist State that denied the identity of the colonised other than as an object of the exercise of State power, and hence abuses by such groups as being an inevitable fall–out.

It is time that the rights of the individual occupied centre–stage.

We have found that armed groups engage in every abuse of the most basic rights of the individual, including the arbitrary deprivation of the right to life through massacres of civilians, killings of suspected “informers” or those who merely abstained from joining the particular armed group; repeated forced movements of people (touchingly described by witnesses as “forced exodus”) and expulsions of populations on the grounds of ethnic or religious background; the use of fear and intimidation to silence critics; the practice of torture; the forced abduction of children for use as combatants; and so on[11].

This Commission accordingly recommends that the Government of Sri Lanka takes up at the relevant international foray the issue of the need for the formulation and promulgation of an international instrument on the subject of the responsibility of armed groups[12].

The UN Treaty Banning Landmines and the Treaty Establishing the International Criminal Courts are precedents that already considered the liability of armed groups.

It would, of course, be the vigour with which a State acts against State and allied abusers of Human Rights that would invest that State’s actions against armed groups with moral authority.