Civil and Political Rights
The Question of Disappearances and Summary Executions

In the communications of the Asian Legal Resource Centre (ALRC) and the Asian Human Rights Commission (AHRC) we have exposed the situation relating to disappearances in Asia and in particular, in Sri Lanka.

According to United Nations Working Group on Enforced and Involuntary Disappearances, Sri Lanka is second only to Iraq in terms of number of disappearances caused in a country. In terms of official statistics three government appointed commissions have reported on about 26,000 cases of disappearances. A further commission, which is still continuing inquiries into another 10,000 cases, has completed inquiries of about 4,000 cases. The government claims that the prosecutions are underway for about 400 out of the 4000 cases. This figure is disputed by many organisations in the country. Even if it was true it is just a handful of cases out of the total number quoted above.

The major obstacle to the prosecution of the perpetrators is that there had been no criminal investigations into the disappearances when they occurred. Criminal investigation was prevented by special emergency regulation laws, which were passed to create the background for causing large-scale disappearances. The provisions of the criminal procedure code relating to criminal investigations were suspended through special laws. The bodies were allowed to be disposed of without any report being filed before courts or without any inquest. As most of the bodies were burnt there is no possibility of examination of bodies during belated inquiries. Further, as the alleged perpetrators are the law enforcement officers themselves there is no possibility of conducting credible inquiry into disappearances by the normal process of criminal investigations through the agencies of the police. The demand for the appointment of a special agency for investigating into disappearances has not been heeded.

Added to all this is the general collapse of the criminal justice system in Sri Lanka.

As is well known, mass disappearances affect large numbers of people who are relatives, neighbours, friends and other acquaintances of the disappeared person; besides this it affects the society at large and shakes the moral foundation of a given society. As a result of the public indifference to the fate of disappeared persons, the families of these disappeared persons have become demoralised and have had to resort to their own means to deal with the consequences of disappearances. As many efforts by them over a period of around 10 years have borne so little result the families of the disappeared have lost faith not only in the legal system but even in the civil society which has failed to respond adequately to the grave injustices done to them.

It remains a fundamental human obligation towards the families of the disappeared to respond to the issue of disappearances and make it a fundamental issue of concern to the community at large as well as to the state.

The most likely outcome of the present situation is that except for a very few number of cases no prosecutions will be instituted. The reason is that there had been no criminal investigations into these cases. So, despite of many protests by the local people and organisations, by international community, by UN Working Group on Enforced and Involuntary Disappearances and the UN Commission on Human Rights itself in several of its sessions, the matter of prosecution of offenders of over thirty thousand offences has reached a dead end.

If the matter is to be resurrected, the first step to be taken is to appoint an independent and credible commission for criminal investigations into dis-appearances cases. A credible inquiring commission needs to have an adequate legal mandate and resources. Sri Lanka has in many ordinary criminal cases sought the assistance of foreign criminal investigation expertise, for example, from Scotland Yard. In some investigations into mass graves, Sri Lanka had invited foreign experts. Therefore there is no reason to prevent foreign participation in the criminal investigations into cases of disappearances. In fact, such participa-tion will add credibility to such a criminal investigation commission.

However, the appointment of such a commission can only happen if the international community, UN Working Group on Enforced and Involuntary Disappearances,UN High Com-missioner for Human Rights and the UN Commission on Human Rights itself take a serious interest in this matter. They have every reason to take such an interest; what has taken place in Sri Lanka in terms of mass disappearances is a crime against humanity. The local commissions have concluded that most disappearances, which occurred in Sri Lanka, were killings after arrest; they have further concluded that disappearances were carried out as a part of plan approved by the highest political authorities. In terms of number of persons dead, Sri Lankan case is much worse than the East Timor case. It is also much worse than the case of Chilean dictator Pinochet.