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The Office on Missing Persons in Sri Lanka: The importance of a primarily humanitarian mandate

Published online by Cambridge University Press:  19 November 2018

Vishakha Wijenayake
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Abstract

This article attempts to situate the Office on Missing Persons (OMP) in Sri Lanka in relation to varying approaches to mechanisms for searching for the missing. In particular, the article examines the possible tensions between a humanitarian and an accountability-based mandate and supports the position of the International Committee of the Red Cross that these two approaches can in fact be complementary in nature. It goes on to contend that the OMP's mandate is primarily humanitarian rather than exclusively humanitarian, and analyzes how this distinction may impact possible criminal prosecutions. It emphasizes the importance of preserving the humanitarian character of the OMP with the objective of ensuring that the victims’ rights are at the centre of transitional justice processes.

Keywords

transitional justicemissing personsenforced disappearancescriminal proceedings
Type
Missing person mechanisms
Information
International Review of the Red Cross , Volume 99 , Issue 905: The missing , August 2017 , pp. 641 - 662
Copyright
Copyright © icrc 2018 

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Footnotes

*

The views expressed in this article are those of the author and do not necessarily reflect the position of the International Committee of the Red Cross.

References

1 Consultation Task Force on Reconciliation Mechanisms (CTF), Interim Report: The Office on Missing Persons Bill and Issues Concerning the Missing, the Disappeared and the Surrendered, August 2016, p. 13, available at: https://docs.wixstatic.com/ugd/bd81c0_1872d48845bd45afaafa7813ce2c89a0.pdf (all internet references were accessed in October 2018).

2 For more on this, see Pauline Boss, “Families of the Missing: Psychosocial Effects and Therapeutic Approaches”, in this issue of the Review.

3 International Committee of the Red Cross (ICRC), “Nepal: Families of Missing Persons Still Searching for Loved Ones”, 16 October 2014, available at: www.icrc.org/en/document/nepal-families-missing-still-searching-loved-ones: “According to the ICRC, 3,777 individuals went missing during the internal armed conflict. Of them, 1,347 – about one in three – are still missing.”

4 ICRC, “Georgia: Efforts to Clarify the Fate of Missing Persons”, 26 April 2106, available at: www.icrc.org/en/document/georgia-missing-persons-clarifying-the-fate. According to ICRC data in Georgia, “more than 2,300 persons are still reported missing as a result of armed conflicts in the 1990s and in August 2008”.

5 International Centre for Transitional Justice, “A Mapping of Serious Human Rights and Humanitarian Law Violations in Lebanon (1975–2008)”, 2013: “It is estimated that as a result of the 15-year conflict, … 17,415 [people are] missing or disappeared.”

6 According to the Committee on Missing Persons (CMP) in Cyprus, there are approximately 2,000 missing. See: www.cmp-cyprus.org/content/facts-and-figures.

7 ICRC, Living with Uncertainty: Needs of the Families of Missing Persons in Sri Lanka, July 2016, available at: www.icrc.org/sites/default/files/wysiwyg/Worldwide/asia/sri-lanka/families_of_missing_persons_in_sri_lanka_-_living_with_uncertainty.pdf.

8 Human Rights Council, Report of the OHCHR Investigation on Sri Lanka (OISL), UN Doc. A/HRC/30/CRP.2, 16 September 2015, para. 48.

9 Ibid.

10 Ibid., para. 49.

11 Ibid., para. 732.

12 “Sanguinary Memories: JVP Insurgence of 1971”, Daily News, 5 April 2017, available at: http://www.dailynews.lk/2017/04/05/features/112482/sanguinary-memories-jvp-insurgence-1971. According to this article, 8,000–10,000 deaths have been recorded in the 1971 uprising. See also Ben Christian and Mogdeh Rahimi, “Sri Lanka (JVP) 1987–1990”, 1 October 2015, p. 2, available at: www.hsfk.de/fileadmin/HSFK/hsfk_publikationen/Sri-Lanka-JVP-1987-1990.pdf. These authors state that “[d]uring the 41 months of war, 2,000 people were killed according to the UCDP [Uppsala Conflict Data Program]. This number is highly contested by the estimates from other sources – the range of these estimates lies between 10,000 and more than 60,000.”

13 Asian Federation Against Involuntary Disappearances, “Sri Lanka: The Phenomenon of Disappearances”, 1 January 2005, available at: www.afad-online.org/resources/books/healing-wounds-mending-scars/sri-lanka-the-phenomenon-of-disappearances. “About seventeen thousand (17,000) persons disappeared during this period of 1971. Non-governmental organizations claim that over sixty thousand (60,000) persons disappeared between 1987 and 1991.”

14 Human Rights Watch, “Sri Lanka: No Progress in Investigating Journalist's Disappearance”, 24 January 2011, available at: www.hrw.org/news/2011/01/24/sri-lanka-no-progress-investigating-journalists-disappearance.

15 UN News Center, “UN Officials Outraged at Accounts of Sri Lanka War Crimes, Stress Need for Accountability”, 17 September 2015.

16 CTF, Final Report: Consultation Task Force on Reconciliation Mechanisms, Vol. 1, 17 November 2016, p. xiii.

17 Ibid., p. xvi.

18 Report of the Commission of Inquiry on Lessons Learnt and Reconciliation, November 2011, p. 1.

19 Report of the Secretary General's Panel of Experts on Accountability in Sri Lanka, 31 March 2011, p. 1.

20 Human Rights Council, Res. A/HRC/25/1, “Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”, March 2014, para. 10 (b).

21 Human Rights Council, above note 8, p. 5.

22 Ibid., para. 1269.

23 Human Rights Council, Res. A/HRC/RES/30/1, “Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”, 14 October 2015.

24 Sanja de Silva Jayathileke, “Sri Lanka Reaffirms ‘Very Firm Commitment’ To Resolution 30/1 At UPR In Geneva”, Colombo Telegraph, 17 November 2017, available at: www.colombotelegraph.com/index.php/sri-lanka-reaffirms-very-firm-commitment-to-resolution-301-at-upr-in-geneva/.

25 Res. A/HRC/RES/30/1, above note 23, p. 2.

26 Ibid., para. 7.

27 Gazette of the Democratic Socialist Republic of Sri Lanka (Extraordinary), No. 2036/21, 12 September 2017, available at: www.documents.gov.lk/files/egz/2017/9/2036-21_E.pdf.

28 Sri Lanka, International Convention for the Protection of All Persons from Enforced Disappearance Act, No. 5 of 2018.

29 Sri Lanka, Registration of Deaths (Temporary Provisions) (Amendment) Act, No. 16 of 2016.

30 Sri Lanka, Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015.

31 Office of Reparations Bill, Gazette of the Democratic Socialist Republic of Sri Lanka, Part II of 22 June 2018 (Supplement) (issued on 25 June 2018).

32 Sri Lanka, Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act, No. 14 of 2016.

33 Sri Lanka, Office on Missing Persons (Establishment, Administration and Discharge of Functions) (Amendment) Act, No. 9 of 2017.

34 “President Appoints OMP Commissioners”, News.lk, 1 March 2018, available at: www.news.lk/news/political-current-affairs/item/19662-president-appoints-omp-commissioners.

35 OMP, Interim Report, August 2018, p. 3.

36 ICRC, above note 7, p. 15.

37 Ibid., p. 24: “Families referred to the following legal and/or administrative hurdles to address their day-to-day needs, because they were dependent on obtaining a certificate of death (CoD): inability to access/close the bank account of the missing person; difficulties in making insurance claims entered into by the missing person; inability to release property pawned by the missing person; difficulties to register children in school; inability to claim the monthly salary of the missing person which was deposited by the employer; inability to reclaim wrongful occupation of land owned by the missing person; difficulty/inability to make transactions with movable or immovable property owned by the missing person.”

38 Ibid.

39 Isabelle Lassée, “Criminal” and “Humanitarian” Approaches to Investigations into the Fate of Missing Persons: A False Dichotomy, South Asian Center for Legal Studies, May 2016, p. 2. Lassée acknowledges that investigations into the fate of missing persons may stem from different approaches, either humanitarian or criminal, which are not mutually exclusive. However, she highlights the risk of this dialogue being falsely dichotomized, thereby presenting victims with an artificial and unfair choice between truth and justice. She therefore argues that pursuing both concurrently through an integrated approach would help further both truth-seeking and criminal prosecutions.

40 Anketell, Niran, Commentary on the Bill Titled Office on Missing Persons, South Asian Center for Legal Studies, June 2016, p. 17Google Scholar.

41 ICRC and Inter-Parliamentary Union, Missing Persons: A Handbook for Parliamentarians, 2009 (Handbook for Parliamentarians), pp. 9–10.

42 CTF, above note 1, p. 17: “‘My child didn't suddenly grow wings or fall out of someone's pocket to go missing, they were taken’ – Mother at Kandavalai public meeting”.

43 Ibid., p. 18: among the submissions made, one view calls for the replacement of “missing persons” with “involuntary or enforced disappearances”, while another calls for the addition of “disappeared” or “involuntary disappearances”. However, for family members of those who surrendered to the army during the final phase of the war, neither “missing” nor “disappeared” captures their experience, and therefore they also call for the inclusion of “surrendees”.

44 Section 27 of the OMP Act, above note 32, defines a “missing person” as “a person whose fate or whereabouts are reasonably believed to be unknown and which person is reasonably believed to be unaccounted for and missing –

  1. (i)

    (i) in the course of, consequent to, or in connection with the conflict which took place in the Northern and Eastern Provinces or its aftermath, or is a member of the armed forces or police who is identified as “missing in action”; or

  2. (ii)

    (ii) in connection with political unrest or civil disturbances; or

  3. (iii)

    (iii) as an enforced disappearance as defined in the ‘International Convention on Protection of All Persons from Enforced Disappearances’.”

45 ICPPED, Art. 2.

46 See Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar (ICRC Customary Law Study), Rule 117, available at: www.icrc.org/eng/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf. For more information on the legal framework applicable to missing persons and their families, see: ICRC, Missing Persons and Their Families, Factsheet, 31 December 2015, available at: www.icrc.org/en/document/missing-persons-and-their-families-factsheet.

47 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977.

48 Melzer, Nils, International Humanitarian Law: A Comprehensive Introduction, ICRC, Geneva, 2016, p. 156Google Scholar.

49 Handbook for Parliamentarians, above note 41, p. 9; definition based on ICRC, The Missing and Their Families: Documents of Reference, Geneva, 2004, p. 6Google Scholar.

50 Handbook for Parliamentarians, above note 41; note that section 27 of the OMP Act, above note 32, refers to all these groups of persons as constituting “relative[s] of a missing person”.

51 ICRC Customary Law Study, above note 46, Rule 98.

52 Ibid., Rule 117. See also the explanation to Rule 11, stating that the obligation to account for missing persons is consistent with the prohibition against enforced disappearances.

53 National Commission on the Disappearance of Persons (CONADEP), Nunca Más – Never Again, 1984, Prologue: “Thus, in the name of national security, thousands upon thousands of human beings, usually young adults or even adolescents, fell into the sinister, ghostly category of the desaparecidos, a word (sad privilege for Argentina) frequently left in Spanish by the world's press.”

54 In 1980 the UN Commission on Human Rights established the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) through Resolution 20 (XXXVI) of 29 February 1980. It was the first ad hoc mechanism set up by the United Nations with the humanitarian mandate to “assist the relatives of the disappeared”.

55 Nowak, Manfred, “Disappearances in Bosnia and Herzegovina”, in O'Flaherty, Michael and Gisvold, Gregory, Post-War Protection of Human Rights in Bosnia and Herzegovina, Martinus Nijhoff, Leiden, 1998, pp. 107–122Google Scholar.

56 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances: Mission to Serbia, including Kosovo, UN Doc. A/HRC/30/38/Add.1, 2015, para. 69.

57 CMP, Terms of Reference and Mandate, Cyprus, 1981, section 13.

58 ECtHR, Cyprus v. Turkey, Appl. No. 25781/94, 2001, para. 135.

59 Ibid., Dissenting Opinion of Judge Fuad, para 22.

60 Article 1 common to the four Geneva Conventions of 1949.

61 In Sri Lanka, the Geneva Conventions Act, which was enacted in 2006, has not yet been operationalized. Furthermore, the Act as it stands now does not criminalize violations of common Article 3.

62 For more information, see “Memorandum: The ICRC's Privilege of Non-Disclosure of Confidential Information”, International Review of the Red Cross, Vol. 97, No. 897/898, 2016, available at: www.icrc.org/en/download/file/19024/irc_97_1-2-18.pdf; Jérémie Labbé and Pascal Daudin, “Applying the Humanitarian Principles: Reflecting on the Experience of the International Committee of the Red Cross”, International Review of the Red Cross, Vol. 97, No. 897/898, 2016, available at: www.icrc.org/en/download/file/19006/irc_97_1-2-8.pdf; Terry, Fiona, “The International Committee of the Red Cross in Afghanistan: Reasserting the Neutrality of Humanitarian Action”, International Review of the Red Cross, Vol. 93, No. 881, 2011CrossRefGoogle Scholar, available at: www.icrc.org/en/download/file/14050/irrc-881-terry.pdf.

63 ICTY, The Prosecutor v. Blagoje Simić, Milan Simić, Miroslav Tadić, Stevan Todorović, Simo Zarić, Case No. IT 95-9. PT, Decision (Trial Chamber), 27 July 1999, para. 73.

64 Ibid.

65 ICTY, Prosecutor v. Brdjanin, Case No. IT-99-36, Decision on Interlocutory Appeal (Appeals Chamber), 11 December 2002, para. 32.

66 ICTR, Prosecutor v. Muvunyi, Case No. ICTR-2000-55, Reasons for the Chamber's Decision on the Accused's Motion to Exclude Witness TQ, 15 July 2005, paras 14–16.

67 Statute of the Special Court for Sierra Leone, 16 January 2002 (entered into force 12 April 2002), Rule 20, para. 3, providing that the SCSL follows the jurisprudence of the ICTY and the ICTR.

68 STL, Rules of Procedure and Evidence, STL-BD-2009-01-Rev.6-Corr.1, 20 March 2009, Rule 164.

69 MICT, Rules of Procedure and Evidence, MICT/1, 8 June 2012, Rule 10.

70 Rules of Procedure and Evidence before the Kosovo Specialist Chambers including Rules of Procedure for the Specialist Chamber of the Constitutional Court, 25 Aug 2017, Rule 111, paras 4, 6.

71 Gazette of the Democratic Socialist Republic of Sri Lanka (Extraordinary), No. 1987/23, 5 October 2016, p. 14A.

72 “This ‘do no harm’ imperative is fleshed out in the first protection principle of the Humanitarian Charter and Minimum Standards in Humanitarian Response, emphasizing the need to “avoid exposing people to further harm as a result of your actions”.’ Sandvik, Kristin Bergtora, Jacobsen, Katja Lindskov and McDonald, Sean Martin, “Do No Harm: A Taxonomy of the Challenges of Humanitarian Experimentation”, International Review of the Red Cross, Vol. 99, No. 904, 2018, p. 323Google Scholar, available at: www.icrc.org/en/download/file/72619/irrc_99_17.pdf; “ICRC Protection Policy”, International Review of the Red Cross, Vol. 90 No. 871, 2008, available at: www.icrc.org/en/download/file/20806/irrc-871-icrc-protection-policy.pdf.

73 K. B. Sandvik, K. L. Jacobsen and S. M. McDonald, above note 72, p. 323. As regards personal data, the ICRC applies its own Rules on Personal Data Protection, available at: www.icrc.org/en/publication/4261-icrc-rules-on-personal-data-protection. It also refers in its work to the Handbook on Data Protection in Humanitarian Action, available at: www.icrc.org/en/publication/handbook-data-protection-humanitarian-action.

74 Olson, Laura M. and Pfanner, Toni, “Cooperation between Truth Commissions and the International Committee of the Red Cross”, International Review of the Red Cross, Vol. 88, No. 862, 2006Google Scholar. See, for instance, on p. 365: “Providing assistance in the short-term must be weighed against medium- and long-term needs. Action taken in one context must also be assessed in the light of its impact on ICRC operations worldwide.” Other articles in that issue of the Review may also be of interest, available at: www.icrc.org/en/international-review/truth-and-reconciliation-commissions.

75 N. Anketell, above note 40, p. 17; I. Lassée, above note 39.

76 OMP Act, above note 32, section 10(1)(b).

77 Ibid., section 2(a).

78 CMP, Terms of Reference, Establishment of the Committee on Missing Persons in Cyprus, 1981, Art. 11.

79 OMP Act, above note 32, section 10(1)(e).

80 CTF, above note 1, p. 14.

81 OMP Act, above note 32, section 2(c).

82 Ibid., section 13(i).

83 Human Rights Committee, General Comment No. 31, “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant”, 29 March 2004.

84 OMP Act, above note 32, section 10(1)(d).

85 UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by UNGA Res. 60/147, 16 December 2005.

86 OMP Act, above note 32, section 13(1)(f).

87 K. Rajasingham, “Can OMP Deliver Justice when Sri Lanka's President Won't?”, Journalists for Democracy in Sri Lanka, 12 June 2018, available at: www.jdslanka.org/index.php/news-features/human-rights/782-can-omp-deliver-justice-when-sri-lankas-president-wont.

88 CTF, above note 1, p. 29.

89 ICRC, above note 7, p. iv.

90 OMP Act, above note 32, section 13(2).

91 Ibid., section 12(d).

92 Ibid., section 12(g).

93 ICRC, The Missing and Their Families: Summary of the Conclusions Arising from Events Held Prior to the International Conference of Governmental and Non-Governmental Experts (19–21 February 2003), 2003, p. 31.

94 Stover, Eric and Shigekane, Rachel, “The Missing in the Aftermath of War: When Do the Needs of Victims’ Families and International War Crimes Tribunals Clash?”, International Review of the Red Cross, Vol. 84, No. 848, 2002Google Scholar.

95 Nesiah, Vasuki, “Overcoming Tensions between Family and Judicial Procedures”, International Review of the Red Cross, Vol. 84, No. 848, 2002Google Scholar.

96 Human Rights Council, Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, UN Doc. A/HRC/36/50, 21 August 2017, para. 82.

97 Ibid.

98 Ibid., para. 79.

99 Robins, Simon, “Towards Victim-Centred Transitional Justice: Understanding the Needs of Families of the Disappeared in Postconflict Nepal”, International Journal of Transitional Justice, Vol. 5, No. 1, 2011CrossRefGoogle Scholar.

100 See Ximena Londoño and Alexandra Ortiz, “Implementing International Law: An Avenue for Preventing Disappearances, Resolving Cases of Missing Persons and Addressing the Needs of Their Families”, in this issue of the Review.

101 Rodrigo ABD and Franklin Briceno, “Families of Peru's Disappeared Hope for Answers”, AP News, 17 August 2018, available at: apnews.com/d6c4990fe60e4b06a5853571985c4536.

102 Ibid.

103 S. Robins, above note 99.

104 Bhavani Fonseka and Joanna Naples-Mitchell, Victim-Centred Transitional Justice in Sri Lanka: What Does it Really Mean?, Center for Policy Alternatives, February 2017, p. 4.

105 See OMP Act, section 13(1)(k)(v), which states that the publishing of information on issues of missing persons for public knowledge must be done with due consideration to all relevant laws pertaining to confidentiality and protection of data.

106 The OMP Act has provided the OMP with certain tools which may be used to protect the Office from political influence in order to fulfil its mandate without interference.