22 September, 2019

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Enduring The Tragedy Of Ambiguous Loss 

By Jehan Perera

Jehan Perera

The appointment last week of commissioners to the Office for Reparation, an independent authority created by the Office for Reparations Act passed in parliament on 9 October 2018, has been the second step of the transitional justice mechanisms for reconciliation process agreed upon by the government and international community. It took place shortly after the conclusion of the UN Human Rights Council session in Geneva, and is an indication of the government’s continued commitment to the implementation of the resolution of the UNHRC that it agreed to in October 2015 and co-sponsored at the cost of much opposition criticism. The responsibility of the Office for Reparation is to identify aggrieved victims qualified for reparation and provide appropriate compensation individually or collectively to them. The office will commence its functions with the appointment of Commissioners.

At the recently concluded session of the UNHRC, the government obtained the concurrence of the international community to extend the implementation period of the co-sponsored resolution by a further two years. This has been met with much criticism on both sides of the ethnic divide. On the one hand, there is the criticism that the process is too slow and there is a need to speed up implementation. The first of the reconciliation mechanisms that the government established, the Office for Missing Persons, has yet to commence finding those who went missing. On the other hand, there is criticism that the government continues to be subject to pressures from the international community with regard to post-war reconciliation.

International experience in implementation of post-war reconciliation measures shows that the process is invariably a slow one. At a recent discussion organized by the International Committee of the Red Cross in Colombo the example of Cyprus was referred. In Cyprus, the Committee on Missing Persons in Cyprus (CMP) was established in 1981 by an agreement between the Greek Cypriot and Turkish Cypriot communities with the backing of the United Nations (UN), to determine the fate of persons reported missing in inter-communal fighting in the 1960s, and as a result of the events of 1974. The CMP does not attempt to investigate, or attribute responsibility for the deaths of missing persons or make findings as to the cause of such deaths. Its mandate is a humanitarian one of “bringing closure to thousands of affected families through the return of the remains of their missing relatives.”

Cyprus Example 

After the end of the conflict, which ran from December 1963 until August 1974, 2003 people were reported missing: 492 Turkish Cypriots and 1,511 Greek Cypriots. Relying on information from the public, the CMP has excavated some 1,254 sites across the island, finding human remains at 1,200 of these. Each site is carefully searched and where found, the remains exhumed and brought to the laboratory for testing. Families of the missing have provided DNA samples to help identify those found. The CMP reached an important milestone in July 2007, when it began returning the first remains of Greek Cypriot and Turkish Cypriot individuals to their families. Since then the remains of 681 Greek Cypriots and 246 Turkish Cypriots have been found and returned to their families, while hundreds more await identification.

The relevant point to note here is that it took 26 years for the first body of a missing person to be identified and returned to their family. The problem of dealing with the past is made difficult when those who were part of the structures responsible for the disappearances continue to remain in positions of power. Sri Lanka has yet to see a far reaching change in either the structures of the parties responsible for the disappearances and other human rights violations. Those who have a close connection with the events of the past, such as those who supervised the white vans that caused enforced disappearances or enjoyed impunity during the war period in order to eliminate the LTTE at all costs would be concerned about the issues of accountability that could arise from the facts that are unearthed.

The problem of missing persons brings to the fore the continuing divide in Sri Lankan society. The majority would prefer to gloss over the problem and move forward without dealing with the past, whereas the minority would be determined to get to the root of the problem and to ensure accountability. This contrary perception has manifested itself in the contrary opinions being expressed about the need for international participation in the special judicial mechanism, which is the third of the mechanisms that the government committed itself to implementing in terms of the UNHRC resolution. The debate on a hybrid court for accountability has been reignited once again by the UN High Commissioner’s most report which specifically recommends the establishment of a hybrid court in Sri Lanka.

Interim Support 

The discovery of the mass grave in Mannar has led to considerable public interest which found its way into the UN High Commissioner’s report also. However, the carbon dating that indicates the remains date back five centuries has been difficult for many to accept. The finding of a research laboratory in the United States that the remains are ancient goes contrary to the prevalent opinion in the north that the mass grave is a testament to the brutality of the war that took place over a period of three decades until it ended in 2009. On the other hand, the carbon dating of the skeletal remains to the 15th-17th centuries has also led to the denial that that mass killings took place during the course of the war. This ignores the fact that massacres took place during the war on both sides.

The LTTE killings of 600 policemen in the east and the killing of virtually the entirety of the Mullaitivu army camp and Elephant Pass camp troops who surrendered when those camps were overrun would account for a significant part of the more than 5000 security forces who are missing and whose families have registered themselves with the ICRC and other official authorities. There were also massacres where the victims of mass killings need not necessarily be buried in mass graves. One incident related in Mannar recounts the killing of a busload of civilians in retaliation for the ambush of an army vehicle by the LTTE. The story is that the conductor of the bus, a Sinhalese, told the vengeful soldiers that his passengers were innocent of that crime and to kill him first if they were to be killed. He was the first victim. There was no need for a mass grave in that incident. Relatives of the victims came to the scene later and removed the bodies of their loved ones for private funerals.

The Office on Missing Persons has been has been provided with information relating to the approximately 16,000 civilians and 5000 security forces personnel who went missing during the war. There would be many more who have not registered with any authority, including the families of LTTE cadre who went missing, but who would not dare to report that to any government authority. From a humanitarian perspective this is the most serious problem in the country which requires an urgent solution. At the ICRC discussion in Colombo the concept of ambiguous loss was discussed. This is the loss that has no official verification, no certainty or clarity and therefore no closure. It is an unending ache and a hope that the missing person will one day reappear. Finding the truth about them will require greater support from the governmental system and manifestation of political will.

In the meantime, those who live in the limbo of ambiguous loss need to be provided with the necessary psycho-social, family and community support to strengthen their individual coping mechanisms. This will be helpful to them, who are the biggest victims of the war, to endure their suffering better, whether or not the answer to their prayer is met.

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    The UNHRC reviews the human rights violation, if any, in all member states. For quite a while, SL has been in the radar of the UNHCHR annual sessions.
    Is it a coincidence that the GoSL appoints a Commission about this time?
    The latest is this appointment last week of commissioners to the Office for Reparation. .
    Clearly the GoSL and the Opposition of the time use the sessions to squeeze political mileage.
    Both sides do not be seem to be perturbed by the adverse effects. The taxpayer foots the bill.
    A change in the mindset is needed.

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