Right to truth is fundamental in addressing enforced disappearances

This week the Cabinet of Ministers approved a proposal to issue death certificates to persons subjected to enforced disappearance and pay a 100,000-rupee one-time-only allowance to their next of kin. Irrespective of monetary compensations made, it is imperative to recognise the ‘right to truth’ when dealing with the crime of enforced disappearance. 

Not every missing person is a victim of enforced disappearance. There may be combatants or civilians who died in conflict whose bodies were never found or recorded as dead. However, within these missing individuals are people who have been subjected to the crime of enforced disappearance, often by an agent of the State. According to international law to which Sri Lanka is also a signatory, enforced disappearance is not only an autonomous crime but a continuous crime for as long as the fate of the disappeared person remains undetermined, the offence continues. The UN Commission on Human Rights in 2006 established that the right to truth is an ‘inalienable and autonomous right’, that should not be subject to limitations.

Sri Lanka has one of the largest case loads of enforced disappearances in the world. In the 1971 first JVP insurrection an estimated 17,000 persons were subjected to enforced disappearance and over 60,000 cases are estimated in 1987-1989 during the second insurrection. 

According to the Paranagama Commission established by President Mahinda Rajapaksa, over 23,000 cases of enforced disappearances were recorded in the North and the East resulting from the ethnic conflict. Having over 100,000 outstanding cases of enforced disappearances is a national shame that should have been addressed long ago.

Sri Lanka signed on to the International Convention for the Protection of All Persons from Enforced Disappearance (CED) in 2016 and incorporated it into domestic law through the CED Act of 2018. This Act recognises enforced disappearance as an autonomous crime which is independent of other crimes such as murder and kidnaping and explicitly recognises the right of relatives of a victim to know the truth, regarding the ‘circumstances of an enforced disappearance, the progress and results of the investigations by law enforcement authorities, and the fate of the disappeared person.’

In 2016, the Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act, No. 14 (OMP Act) also ratified the right to truth for the missing by recognising that ‘relatives of missing persons are entitled to know the circumstances in which such persons went missing, and the fate and whereabouts of such missing persons.’

These are now law of the country, and the Government cannot and should not attempt to move on from addressing these outstanding cases which have been committed primarily by State agents, such as the police and the military by offering monetary compensation without proper investigations into the circumstances of the disappearance. Reparations carried out in a manner that acknowledges the harm caused to individuals and their next of kin can have a healing effect which would contribute to reconciliation. However, offering a one-off payment without a due process of holding those responsible accountable would only be akin to “hush-money” to silence the victims. That would be a shameful attempt of obfuscation by the Government. 

The track record of the Gotabaya Rajapaksa administration in this regard also does not inspire confidence. The most well-documented case of enforced disappearance in recent years is that of journalist Prageeth Eknaligoda who disappeared in 2010. Later investigations revealed that he had been abducted by a military intelligence unit of the Sri Lanka Army and held at the Giritale military camp. There have been numerous interferences in the investigation and since the election of President Gotabaya Rajapaksa, the trial has stalled while military intelligence personnel and their commanding officers accused of the crime were exonerated by a presidential commission of inquiry mandated to investigate political victimisation.

Especially in this context, it is imperative that the Government demonstrates that these measly offers of compensation are not in fact attempts at silencing the victims and their next of kin. Only through a truth and justice process – and not merely monetary compensation – will the families of the disappeared finally find closure and healing and the Government be able to move forward.