Never disappearing trauma of enforced disappearance

Last week, on 30 August, the United Nations, many countries, and millions of victims, commemorated the International Day of the Victims of Enforced Disappearances. In Sri Lanka, which has one of the largest caseloads of enforced disappearances, numbering well over 100,000, it was yet another reminder of the failure of the State to grant a remedy for this most heinous of crimes committed against its own people. 

The 1971 JVP insurrection which lasted a mere five weeks resulted in over 12,000 enforced disappearances and extrajudicial killings by the then SLFP Government. That number is in the range of 60,000-100,000 for the period 1987-89 during the second JVP insurrection when a UNP administration committed untold atrocities in the south. The Government’s own commissions of inquiry looking into this period have recorded over 46,000 disappearances. The number of extrajudicial killings and enforced disappearances in the northern theatre of violence between 1983 and 2009 ranges in the tens of thousands. A committee appointed by former President Mahinda Rajapaksa recorded 23,000 to have been subjected to enforced disappearance in the former conflict zone while the actual number is much higher.

According to international law, as long as a person remains missing, the crime of enforced disappearance is ongoing. Therefore, the cases of these tens of thousands of individuals who have been subjected to enforced disappearance by the Sri Lankan State are “continuous crimes” and no number of years passed is going to end the ongoing crime.

Despite 20 mass graves having been partially exhumed over the last three decades, hardly any family has had the remains of their loved ones returned. Instead, officials, including magistrates and forensic experts involved in these excavations have been transferred abruptly, police have delayed carrying out judicial orders and there has been a concerted effort to deny justice. In this regard, the much-touted Office on Missing Persons (OMP) established in 2016 through an Act of Parliament has been an abysmal failure. Despite its mandate to carry out investigations of ‘incidents of missing persons including those missing as victims of abduction, persons missing in action or otherwise missing in connection with armed conflicts, political unrest and civil disturbances’ to date it has failed to identify a single victim and assist in any judicial process to bring those responsible to justice.

The two most prominent cases currently within the judicial system is the enforced disappearance of journalist Prageeth Eknaligoda by the unit of the Sri Lanka Army and the abduction, holding to ransom and enforced disappearance of 11 mostly Tamil men, allegedly by an intelligence unit of the Sri Lanka navy. In both these cases not only has the judiciary, the Government and law enforcement authorities failed miserably in the quest for justice but have often been actual barriers in the path. Yet somehow, perhaps largely due to the tenacity of the families of the persons, these two cases have at least made it to courts.

Consecutive Sri Lankan Governments and its judiciary have amply demonstrated that they are unwilling and most definitely incapable of delivering justice for the victims of this heinous crime. Due to this failure, and the intentional scuttling of domestic mechanisms to grant justice to victims by a handful of individuals in positions of power, there is now an international mechanism established at the UN Office of the High Commissioner for Human Rights to gather evidence of the serious human rights violations committed in Sri Lanka, especially by those who are associated with the State. Anyone who stands in the way of international jurisdiction in this regard is no better than those who committed these crimes in the same place.