Biraj Patnaik, Amnesty International’s Regional Director for South Asia considers the progress of the recently established Office on Missing Persons towards advancing truth, justice and reparation for missing and disappeared persons and their families in Sri Lanka. This opinion piece was originally published in the Sri Lanka Sunday Observer on 21 October.
Amid the furore around the Joint Opposition’s political mobilisation last month, a key event was overlooked. The Office on Missing Persons (OMP), a key body, empowered to search for and trace people who were disappeared during Sri Lanka’s 26-year-long internal conflict, submitted its interim report – with key recommendations, to President Maithripala Sirisena.
Since their appointment in February, the OMP members held six events to reach out to families of the disappeared. Between Mannar, Mullaitivu, Matara, Trincomalee, Jaffna and Kilinochchi, more than 2,000 people were in attendance. This was no mean feat considering the resistance the OMP has faced from different sections of society – some view its work with suspicion or hostility, fearing that it does not go far enough to deliver justice and would simply disappoint their hopes once again.
The outreach is important to the credibility of the Office’s work. Many victims feel they weren’t consulted by the Government when it hastened the Office on Missing Persons Bill through Parliament in 2016. It would also complement the efforts of the Consultation Task Force, whose 900-odd page report featured testimonies from more than 7,000 people.
The OMP’s interim report speaks of the importance of guaranteeing justice. Determining the fate of the disappeared is merely the start of a longer process of healing and accountability. The interim report also touched on longstanding structural issues that have impeded or undermined prosecutions. A good example of this is the role played by the Attorney General’s Department, which acts as both, the prosecutor in cases of alleged enforced disappearances and defends respondents when it comes to habeas corpus writs – without the faintest regard for the glaring conflict of interest at play.
As the interim report also notes, there are people still occupying powerful positions in the military and government who are suspected of criminal responsibility in cases of enforced disappearances. Inexplicably, they have not yet been removed from office or suspended from their duties. Furthermore, the report recommends giving the highest priority to prosecutions and other cases involving enforced disappearances in order to break with the enduring climate of impunity. There is a lack of political will to investigate and prosecute these cases, even where credible evidence of crimes under international law and human rights violations exists.
Another problem is the existing legislation. The interim report specifically mentions the need to strengthen, amend or repeal laws such as, the Enforced Disappearances Act, the notorious Prevention of Terrorism Act, the legal framework on inquests into deaths and related protocols and the Certificate of Absence, as well as the Office on Missing Persons Act that brought the OMP into existence in the first place. In its first six months, the OMP says, it has repeatedly encountered state obduracy – including a lack of due recognition. To be able to successfully fulfil its mandate, the OMP must engage with a range of Government ministries. Some of these ministries are yet to come to terms with the Office’s existence as an independent and permanent body that is neither a ministry, nor an independent commission, nor a commission of inquiry. The Office rests precariously within a state structure that has long been accustomed to maintaining a studious silence or issuing blanket denials on the issue of enforced disappearances.
Encouragingly, the report also strikes a note of introspection about its own work. It acknowledges not just the challenges arrayed against it within the state structure but also the suspicion with which it is viewed by victims and their families. Dismayed by broken promises in the past and the failure of earlier mechanisms that vowed to deliver justice, they are understandably wary of the OMP.
The members of the Office make clear that they have been listening to victims’ voices, showing willingness to take on board recommendations made to them during the outreach events – to set up mobile offices in remote areas, and prioritise key cases – such as those of the hundreds who were disappeared after surrendering in 2009. For all the good intentions laid out in the report, the OMP must bear some of the blame, too. As we saw on a visit to the North in August, there are widespread complaints about the composition of the Office: there aren’t enough victims represented, and there are few Tamil-speaking members. Amnesty International has in the past called for the appointments to reflect the pluralistic nature of the Sri Lankan society. There are also concerns about the inclusion of an individual closely linked to the army.
The OMP must acknowledge and address these concerns directly to the extent possible, and correct course- although appointments are beyond the control of the current membership. At present, there are families who do not want anyone to engage with the Office, hopeful of an international mechanism. These groups have gone as far as to stop those who are eager and desperate to engage. The reasoning behind some of the decisions made by the OMP isn’t clear either. It has made a laudable distinction between relief payments and reparations. Until the matter of reparations is settled, the OMP has proposed an interim financial aid programme that will give families who have no reliable income a monthly living allowance of LKR 6,000. There is no explanation provided on how it was arrived at, nor is it inflation indexed or linked to minimum wages.
On the question of mass graves, the OMP has highlighted its role in acting as an observer when it comes to the excavation and exhumation work at one mass grave discovered in Mannar. But, the OMP is unusually silent about other mass grave sites. Since the 1990s, grave sites have been identified in many parts of Sri Lanka- in the Central, Northern and Eastern Provinces. Since 2012, over two hundred bodies have been exhumed from grave sites in Matale and Mannar. Information about another site in Kaluwanchikudy surfaced in 2014 – allegedly containing around one hundred bodies, but has not yet been exhumed. These grave sites could potentially hold key answers linked to the OMP’s mandate.
Cognizant of the criticisms relating to OMP’s set up, that which includes the discretion to report information it uncovers to relevant law enforcement or prosecuting authority, the OMP should have publicly clarified that it will submit all information and evidence of crimes under international law for criminal investigations and prosecutions to ensure that victims have access to justice.
Such reluctance has led some to conclude that the OMP is acting more like a commission of inquiry, merely offering a series of observations in successive reports, rather than an investigative body that is tasked to uncover fresh evidence and deliver answers to the families of disappeared who have spent years yearning for them.
It may be too early to draw any conclusive judgment about the OMP’s work, but this is a body that has little time on its side. Having taken years for the OMP to finally get working, we are now not far away from the ten-year anniversary of the end of the conflict in May 2019. Over the coming months, the Government’s commitment to the four pillars of truth, justice, reparation and guarantees of non-recurrence will be tested. Progress made by the OMP will be a key metric in determining whether Sri Lanka has lived up to the pledges made when it co-sponsored Resolution 30/1 at the UN Human Rights Council three years ago, when the UN High Commissioner delivers a comprehensive report at its fortieth session next March.
President Sirisena has proposed to appoint a Cabinet subcommittee to study and implement the OMP’s interim report recommendations. It was a heartening gesture, but it offers little hope. At least seven of the 10 Cabinet members of the subcommittee have little or no connection to the OMP’s mandate through their respective Ministries.
The appointments appear to have been more an exercise in political expediency than a genuine effort to bolster the OMP’s work – and provide answers to the families of the disappeared. With a window for truth, justice and reparation for the disappeared closing, I hope that I’m proved wrong over the coming months. The interim recommendations offer another opportunity for the Government to engage with and gather the support of many victim groups disillusioned and sceptical of a State-led mechanism. The Government cannot fail the disappeared and their families yet again. It cannot afford to fail the OMP.
For more information on Amnesty International’s recommendations to the Sri Lankan government to address impunity, see Making the Right Choices: Establishing effective mechanisms to deliver justice , truth and reparation to victims.