Disappearances: Sri Lanka

Basil Fernando

After almost 13 years after disappearances became known in Sri Lanka, disappearances in the country, estimated at around 30,000 officially and 60,000 unofficially, remain uninvestigated and not prosecuted. Except for a random case here and there, like the Ambilipitiya case, a case of missing children which really proved all of the limitations of investigations and prosecutions, the issues, by and large, remain dead, despite the assurances given by the Sri Lankan government at the annual sessions of the U.N. Commission on Human Rights (UNCHR) on several occasions. Needless to say, the victims' families do not believe anything will happen. Many of them feel that they have been cheated by everyone.

The purpose of this brief article is not to point any finger at anyone but to ask whether the situation will remain the same or whether it can be changed. This attempt is to look into the problem objectively.

The Asian Human Rights Commission (AHRC) is raising this question locally in Sri Lanka and is trying to find answers. Here in this brief article we confine ourselves to the international arena and ask, What are the obstacles that inhibit international agencies from acting?

A ready answer seems to be that the problem is the evidence.

Answering the question in this way is to beg the question. Nothing helpful comes out of it. It is perhaps time to ask at least a few more questions which may answer some of the problems arising from the Sri Lankan experience and also others.

The Crux of the Problem in the Western and

Non-Western Dialogue on Human Rights

It is the fortune of Western countries that during the 19th century and thereafter they were able to establish a legal system based on the rule of law. Everyone born into it inherits it and naturally is conditioned by it. The identification of human rights problems in this context are to look for areas where this development has been defective or insufficient. There may be moments where this whole system is challenged, as under fascism or communism, for instance, and then the system has to be defended. By and large, the issue is one of this or that defect in the system.

When one looks at the outside world with this conditioning of the mind and tries to understand the gross violation of rights- for example, what has happened in Sri Lanka-the natural tendency is to look for the defects of the system which produce them. The presumption is that the system exists; but as elsewhere, there are limitations. We may call this the "we-too-have-such-problems" approach.

With this approach, what one investigates are the defects of the system, but what if the system itself is the cause of the problem? Here "the system" is meant the legal system. Could it be that it is the legal system as it exists in a particular country that is the cause of disappearances or other gross human rights abuses?

This will be a difficult problem for any Western person whose experience is conditioned by the legal system of his or her society. After all, a fundamental belief in the rule of law is a very important part of the living culture of the West. It follows that there is a faith that a basically working legal system exists, though it may have many defects.

Now, without going into too many abstractions, the problem of understanding a situation like Sri Lanka for a Westerner is that no such functioning legal system really exists. Of course, in this respect, there are countries which have this problem in a more acute way, like Afghanistan or Cambodia, but the basic problem in comparison to a Western democracy is the same: the system itself is fundamentally flawed.

To come to the point, a local person trying to deal with the issue of disappearances knows that this is not just a question of evidence. Where is the prosecutor before whom the evidence is going to be put forward? Where is the law that makes disappearances, the maintenance of torture camps, etc., offences? Which court will hear these cases?

What the local people concerned about the disappearances issue think are the problems and what the international organisations think are the problems have never been seriously discussed. The Western organisations have been more keen to tell the local people how to solve the problem than to listen to the local groups and even the victims.

Again, to come back to the point, the real problem of the prosecution of disappearance cases and other serious violations of rights is that Sri Lanka does not have a system of prosecutions that can be relied upon for dealing with this type of case. Imagine if there did not exist the Spanish prosecutor to take up the Pinochet case. Would there have been a case in London if this was the situation? If not for the prosecutor at the War Crimes Tribunal in The Hague, would Milosevic be there now? AHRC has been raising this issue for the last six years regarding Sri Lanka. The U.N. Working Group mentioned it in their recommendations in the year 2000. However, there has not been a consistent international strategy to emphasise this matter of the prosecutor as a central issue and to focus an international campaign on this issue so that pressure can be brought to bear to resolve it.

There is plenty of documentation about the prosecutor's issue. For the time being, it is better to concentrate on the issue through a comprehensive strategy for the prosecution of disappearances and other gross human rights abuses. Left to the Sri Lankan system of prosecutions as it now stands under the attorney general, nothing worthwhile will happen however long we wait.

As for evidence, there are so many people who have come forward, and more are willing to come forward. There are enough Sri Lankans competent to collect, document and deal with evidence. There are abundant legal skills that exist in the country. All of this can be done cost effectively and safely, but one thing that cannot be done easily is to create a faith in the people who know that the prosecution of these cases is mere bluff. It is this question that the international human rights groups should try to address. Making some headway on this front will affect the issue substantially.

Perhaps this is also the appropriate moment to raise and pursue this issue as the reform of five institutions-the police, judiciary, the election commissioner, the civil service and the administration-are being discussed now. The parliamentary bills relating to these institutions are to be submitted within the next few weeks. The overall system will also come under discussion in the next few months.

If international non-governmental organisations (NGOs) can come forward at this time with statements and recommendations for the institution of a proper system of prosecutions, it can be extremely useful. On this matter, recommendations that AHRC has made on several occasions are as follows:

• The prosecution function must be taken away from the department of the attorney general;
• A new function for the public prosecutor must be created;
• This institution must absorb the developments relating to prosecutions in other countries, particularly those with common law jurisdictions, such as the United Kingdom, Australia and the United States; and
• Criminal investigations must be brought under the legal supervision of the prosecution department.

The challenge for international human rights groups may be presented in this way: Suppose that in three years from today we were to review what progress we have made on this issue, can we expect something positive to report? Unfortunately, we look back at the last three years, and there is hardly any real achievement of which to speak. In what way can we make a difference during the upcoming three years? AHRC has offered here some suggestions that may make a real difference if we can follow them as an international strategy.