Six years after the end of what is generally regarded as the longest armed conflict in Asia, relatives still search for answers about the whereabouts of their missing family members. The precise number of persons who are missing as a result of the Sri Lankan conflict remains a matter of dispute. Media reports highlight the discrepancies between numbers given by government and non-government agencies and numbers based on cases reported by families searching for their relatives. The Working Group on Enforced or Involuntary Disappearances (WGEID) of the UN Office for the High Commissioner for Human Rights has recorded 5,671 reported cases of wartime-related disappearance in Sri Lanka, not counting people who went missing in the final stages of fighting from 2008 to 2009. However, it is argued that disappearances occurred on a “massive scale”, especially between 2006 and 2009. “At the end of the war, many who surrendered to the army disappeared”.
Addressing the issue of missing persons is vital in the quest for truth and justice for civil society and for families of the missing, and is, in the long term, a necessary precondition for sustainable peace. Not only will investigations and policies to address the missing ensure justice for families and provide them with some level of closure, the fact that the government is willing to address these issues – even in instances where the state is culpable – signals to the public the start of a new era of accountability and begins to build the foundations for trust among citizens and between citizens and the state.
The Sri Lanka conflict began in 1983 between the Sinhalese-led government in Colombo and a variety of armed Tamil separatist movements that were eventually absorbed into the Liberation Tigers of Tamil Eelam (LTTE), which sought independence for the northern and eastern part of the country. The conflict, which lasted for nearly three decades, finally come to an end in 2009 when a series of battlefield defeats reduced the territory under the control of the LTTE to a small patch of land in the northeast of the country where remaining LTTE cadres were surrounded by government forces and LTTE leader Velupillai Prabhakaran was killed.
Government forces and the LTTE have been accused of widespread human rights abuses including “abduction, conscription, and the use of child soldiers.” The government of Mahinda Rajapaksa, voted out of office in January 2015, is generally viewed as having resisted meaningful steps to investigate and prosecute alleged war crimes by government forces and the LTTE, as recommended by Human Rights Council resolutions in 2012 and 2013.
In September 2014 the then UN High Commissioner for Human Rights, Navanethem Pillay, warned that unless the Sri Lankan government took “comprehensive measures” to address human rights violations committed during the war, it could face an international investigation.
In January 2015, Maithripala Sirisena, who had been general secretary of Rajapaksa’s political party and a senior member of the Rajapaksa government, unexpectedly stood against him for the presidency and won. Sirisena’s victory opened the door for international reengagement with the government of Sri Lanka in matters related to democratic governance, accountability and reconciliation. After the election, President Sirisena and Prime Minister Ranil Wickremesinghe set about implementing an ambitious “100 Days” agenda to restore democracy and accountability, including replacing the Northern Provincial Governor and Chief Secretary with civilians and appointing a Tamil as the Chief Justice of the Supreme Court. The government also pledged to free hundreds of Tamil detainees being held without charge; to return to its owners much of the land in the north and east of the country seized by the military during the conflict; and to establish a credible domestic accountability mechanism to address human rights abuses. The “100 Days” agenda also alluded to specific transitional justice activities – including reparative measures, institutional reform processes and reconciliation initiatives between different religious and ethnic groups – to be implemented at the local and national levels.
In mid-September the Sri Lankan government announced that it would establish “independent, credible and empowered mechanisms for truth seeking, justice, reparations and guarantees of non-recurrence” in regard to war crimes, including enforced disappearances, perpetrated during the conflict. Among other things, the government proposes to establish a Commission for Truth, an Office on Missing Persons, and an Office for Reparations.
ICMP Director-General Kathryne Bomberger welcomed the announcement by the Sri Lankan government, noting that “There is now an important opportunity for all stakeholders in Sri Lanka, together with constructive assistance from international partners, to address the issue of those who went missing during the conflict. The fact is that truth seeking, including accounting for the missing is an indispensable component of post-war recovery.”
Ms. Bomberger stressed that Sri Lanka, like other countries, must act according to international norms. “States have to recognize their responsibilities,” she said. “When they approach the authorities seeking information about the fate of loved ones, families are seeking to access their rights under the law.”
She alluded to the principles enshrined in ICMP’s Declaration on the Role of the State in Addressing the Issue of Persons Missing as a Consequence of Armed Conflict and Human Rights Abuses, which asserts that addressing the issue of missing persons is a responsibility of the state and which requires state signatories to uphold the rights of survivors, including the rights of families of the missing to know the fate and whereabouts of their loved ones. The Declaration also requires signatories to “strengthen domestic capacities to effectively address the problem of missing persons”.
“The government of Sri Lanka has expressed a commitment to pursue the issue of missing persons in an inclusive and constructive way and this can only be positive for all the people of Sri Lanka,” Ms. Bomberger said. “The right to the truth is a basic human right, and there are various ways in which this right can be upheld.”
At the end of September 2015, UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein, presenting the UNOHCHR’s report on Sri Lanka to the Human Rights Council in Geneva, called for “the establishment of an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try notably war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defence office and witness and victims protections programme” to examine crimes committed during the conflict in Sri Lanka. The Commissioner also said that the task assigned to the Missing Persons’ Commission (headed by former Justice Maxwell Paranagama) should be transferred to a “credible and independent institution established in consultation with the families of the disappeared.” Inclusion of families of the disappeared in this commission is an important element and should be highlighted as it enables them to advocate directly for their own needs and rights.
In a country where the conflict led to staggeringly large numbers of households headed by single females (50,000, according to some accounts), where there are high rates of unemployment and where living standards are generally low, helping families of the missing to secure their socio-economic rights and to access justice is a significant element in promoting and sustaining post-war recovery.