A Way Forward in Sri Lanka

Photo by: DushiYanthini Kanagasabapathipillai

Photo by: DushiYanthini Kanagasabapathipillai

Andreas Kleiser analyzes the essential role of resolving the issue of missing and disappeared persons in Sri Lanka as part of the country’s postwar recovery.

ICMP and the Guatemalan Forensic Anthropology Foundation (Fundación de Antropología Forense de Guatemala: FAFG) held two roundtables in Sri Lanka in March, one in the eastern port of Trincomalee (14/15 March) and the other in the capital, Colombo (17/18 March). The objective was to bring together stakeholders and examine steps that have to be taken in order to establish a systematic and effective process to account for those who are missing as a result of more than 25 years of conflict.

The total number of MDPs in Sri Lanka is unknown. The current Sri Lankan Presidential Commission to Investigate into Complaints Regarding Missing Persons (PCICMP), covering the period from June 1990 to May 2009, had received 18,249 complaints from civilians as of 23 October 2015 and 5,000 from the security forces, mainly in the North and the East. The UN Working Group on Enforced or Involuntary Disappearances (WGEID), following its visit to Sri Lanka on 9-18 November 2015, said it had transmitted more than 12,000 cases to the Government of Sri Lanka, of which 5,750 are still outstanding. Other UN reports cite over 40,000 missing persons. The International Committee of the Red Cross (ICRC) registered some 16,000 cases between 1990 and 2015.

In November, ICMP and FAFG conducted a series of consultations with families of victims, victims’ and survivors’ associations, religious leaders, civil society organizations, government representatives, human rights advocates, lawyers, and forensic experts. The roundtables in March were designed to prioritize and explore in more detail issues that were raised in November.

Issues the participants discussed in depth were (i) the scope of the problem, including who should be considered a missing and disappeared person in Sri Lanka; (ii) security, in particular witness protection; (iii) institutions and processes, in particular the proposed office on missing persons and the role of civil society; and (iv) data collection, access to and sharing of data on missing and disappeared persons. These broad issues were deliberately chosen to allow for overlap and complementary discussions in plenary and panel format, as well as in thematic working groups, so as to create a better understanding of how these issues interlink and what provisions may be necessary to improve a future MDP process.

In discussing the scope of the problem in quantitative terms, participants acknowledged that estimates are driven by assumptions concerning circumstances of disappearance, and whether or not the missing are assumed to be alive, as well as by divergent communal perspectives. The divergent perspectives, however, also demonstrate that the need to share grievances, to be heard and to obtain acknowledgement of one’s loss is universal. By implication, the scope of the problem can only be understood as inclusive of all persons reported missing in Sri Lanka regardless of circumstances, or of ethnic or other group affiliation. Clearly, an inclusive perspective poses a great challenge to society, to victims associations and to the authorities.

Sri Lanka can meet its sizable and complex MDP challenge and thereby strengthen social cohesion and reconciliation. To achieve this, it is necessary to recognize that an inclusive process of accounting for the missing will have a broad positive impact on the effort to develop more just institutions that merit public trust.

There are different perspectives on how to move forward:

  • A State-led approach proceeds from the premise that the Government takes the lead in instituting processes to account for the missing that are inclusive and equally accessible to all. The present government’s project to establish an Office on Missing Persons may point in this direction;
  • A civil society-led approach may constitute a viable way forward in the event that the government is unable to institute a formal and effective process of accounting for the missing. Civil society efforts to document and preserve evidence of disappearances can play an important role in obtaining ex officio responses from investigators, prosecutors and courts. Qualified civil society actors can also accompany and support investigations, including forensic investigations, by law enforcement agencies or the Courts.

While MDP issues are ultimately a responsibility of the State, either of the above approaches may serve as a starting point, and they can also be combined to some extent. For instance, the proposed Office on Missing Persons may well decide to include  civil society actors in its work.

Under the right to life, the State must institute mechanisms capable of establishing the truth about persons going missing or disappearing, including establishing the circumstances of disappearances. The government’s proposal to create an Office on Missing Persons may  represent a step in that direction. It remains unclear, however, how the Office will operate and how it will contribute to the capacity of the State to meet its obligation to investigate MDP cases effectively, or how it will gain the trust of victims of human rights abuses, including relatives of MDPs.

The Office on Missing Persons should participate in advancing the rule of law and the effectiveness of human rights guarantees. MDP processes cannot proceed in isolation from civil society or from the institutions of the State, and restoring public confidence in State institutions must be a central purpose of any mechanism to address MDP issues. The proposed office should therefore directly contribute to the capacity of the State to meet its obligation to investigate MDP cases effectively.

The proposed Office should have the powers necessary to ensure that State institutions assume responsibility and effectively carry out their functions in respect of MDPs in a manner that respects and dignifies the victims and families.

The roundtables, and the consultations that preceded them, revealed a willingness on the part of stakeholders to embark on a credible and rigorous effort to account for the missing on the basis of clear and internationally recognized guidelines, to recognize the legal rights of families of the missing and to listen and respond to their legitimate fears as well as their aspirations. The question now is how to steer this broad consensus into a sustainable and effective process that has the support of government, families of the missing, and society as a whole. ICMP seeks to build on the understanding that has been developed through these extensive consultations with a view to contributing to this sustainable and effective process.

The roundtables were part of an initiative organized by a consortium of agencies operating under the auspices of the International Coalition of Sites of Conscience (ICSC), which, in addition to ICMP and FAFG, includes the Global Initiative for Justice, Truth and Reconciliation (GITJR). The roundtables were co-hosted by the Centre for the Promotion and Protection of Human Rights (CPPHR) in Trincomalee and the Centre for Human Rights Development (CHRD) in Colombo.

Andreas Kleiser is ICMP’s Director of Policy and Cooperation; he co-chaired the roundtables in Trincomalee and Colombo