21 October, 2017

The Culture Of Impunity; Enforced Disappearances & The Bill 

By Arun Kumaresan

Arun Kumaresan – Air Vice Marshal (Ret’d)

The fact that a crime might have been committed with impunity in the past may make it seem more familiar and less barbaric, but it remains barbaric and only represents a violent mindset of tolerance and does not give it any greater legitimacy. Such crimes remain unjustified and only represent a culture of brutality. ~ (Adopted from a quote by Jonathan Kozol)

The recent TV visuals of a mother wailing to know the fate of her missing son for last nine years resonates the clarion call made by the then firebrand MP Mahinda Rajapaksa, quote “I took the wailings of this country’s mothers. Do I not have the freedom to speak about them? It was the wailing of those mothers which were heard by those 12 countries” (Hansard: 25th October, 1990 in page 366).

Unlike in 1990, the current debate on the proposed Enforced Disappearances Bill is marred by the orchestrated campaign by vested interest groups under the cover of pseudo patriotism in the name of the “war hero”. This has confused the populace to a great extent. Hence, this article is primarily targeted to create awareness to the rank and file of our beloved citizenry. For this purpose, it is prudent to categorize the types of death during a conflict or war.

a) Good Kill – This is the removal, by whatever means deemed appropriate, of an individual (or a group) from the battle space who has knowingly engaged or prepared to engage in hostilities against friendly targets – LEGAL AND NOT RELEVANT TO OUR TOPIC.

b) Collateral Damage – This is the consequence of unforeseeable or unavoidable circumstances that had led to the death of a civilian. At a higher level these deaths may be foreseeable but considered acceptable given the strategic objective (though unfortunate) – LEGAL AND NOT RELEVANT TO OUR TOPIC.

c) Killing in Rage – Described as the killing of innocent civilians due to the reckless behavior of soldiers who are acting in a manner that has no regard for the value of human life – ILLEGAL BUT AGAIN NOT RELAVANT TO OUR TOPIC.

d) Enforced Disappearances – Arrest with malicious intent to torture, restrain illegally outside prescribed practices, trade for ransom for a reward (extortion) and/or kill human being in a circumstance that is not self-defense or defense of another and acting with the patronage of the State – ILLEGAL AND THE CORE AREA OF OUR TOPIC.

(Adopted from an article: http://www.abc.net.au/news/2017-07-10)

Hence, the relevant bill only targets the last; ‘enforced disappearances’ and excludes all other deaths including those that occurred during the ‘Humanitarian Operations’ in the North and East of Sri Lanka during the period 2007 – 2009. The troops and leadership who bravely fought a brutal enemy in the legitimate conduct of operations to eradicate terrorism in Sri Lanka, on the orders issued by their respective chiefs under their supreme commander’s directions will not fall victim under the said bill.

Enforced Disappearances in Sri Lanka:

The history of enforced disappearances dates back to 1971; when an ill prepared security apparatus was thrust to defeat a Marxist rebellion. The records are vague but it suggests around 1000 to 2000 who were rounded up never lived to tell their tales. In the 1988/89 insurgency; to keep it short the ‘instrument of enforced disappearances’ was used as the frontline method in the conduct of counter operations against the subversion.

The methods used were brutal and ‘tyre pyres’ were the norm. Piled up half burn bodies were seen in midst of towns or floating in rivers and canals. The number of deaths due to enforced disappearances would have topped five number figures. There were numerous incidents and only a truth commission can expose the crude dark era that existed.

The deaths in the North and East will fall under the first 3 categories a, b and c above. Enforced disappearances were not used as an instrument in the counter terrorist operations especially during the humanitarian operations phase. However, the current revelations expose a trend by a small group of personnel who had been engaged in carrying out enforced disappearances. It is too early to tell the numbers but this unfortunate practice has been in place and gone unchecked. The three decade of war too is bound to have a fair share of enforced disappearances in North and East though not widespread like in the South. This may only come to light once the Office of Missing Persons (OMP) is established.

Another factor for such enforced disappearances is the use of irregular groups by the State, such as Grease Yaka, Karuna Group, Pillayan Group and certain EPDP and PLOTE members. These groups engaged in contract killings and extortions under the guise of assisting the State. The conduct of these groups and the damage done to the image of the legitimate security apparatus is immense. Any corrective action needs to effectively address this factor and use of such groups should be mandatorily banned; as they do not have legal, ethical and moral standing in the society.

Hence, there is an urgent need for a legal framework for the unwanted loss of life and to protect the overall image of the security forces as a whole and in particular to safeguard the honor of the valiant armed forces/police personnel who defeated the ruthless terrorists. This has been well addressed by the Lessons Learnt and Reconciliation Commission (LLRC) appointed in 2011 by the then President Mahinda Rajapaksa.

This Commission whilst recommending punitive action against violators from State security apparatus and the irregular entities as mentioned above; has reinforced the need for a legislative frame work. Quote: “In order to address this issue comprehensively and to eliminate this phenomenon in the future as well as to fill an existing lacuna, the Commission strongly recommends that domestic legislation be framed to specifically criminalize enforced or involuntary disappearances.”- Findings COMMISSION OF INQUIRY ON LESSONS LEARNT AND RECONCILIATION, 2011, 5.46

This will put the hue and cry by the fear mongers that Yahapalanaya regime has given into the pressures of UN and western powers. It is the opposite; as the present regime in fact is trying to take forward a recommendation made by this domestic Commission that was appointed by the former regime. It is also heartening to note the bill has not been challenged at the Supreme Court with regards to its constitutionality. This makes it clear the sovereignty of the nation or the citizenry including the members of the armed forces have not been compromised.

It is important to note that the draft bill gives a legal framework to criminalize the enforced disappearances. More importantly exclusive jurisdiction is retained by the High Court of the Western Province of Sri Lanka. It also gives power to extradite its citizens and also a citizen of a convention state if he is a habitual resident to be tried by our courts to any offences specified in this bill.

In the event another nation is a signatory to the convention and a domestic legislation passed by their legislature with similar clauses; the vice versa may apply for a suspected criminal in Sri Lanka. This fact is blown out of proportion to the effect, armed forces personnel are bound to be extradited. The very fact having our own legal framework will prevent such requests; as any purported offence could be tried by our courts in Sri Lanka. Hence, this proposed piece of legislation will give that insulation and will protect an offender, if he/she is a citizen to be tried by our courts without being extradited. However, another nation making similar legislation is beyond the control of Sri Lanka and has no relevance to the proposed piece of legislation.

The shortfall of this proposed legislation is it does not have retrospective effect due to the provisions arising out of Article 13 (6) of our Constitution, which prevents retrospective application of new laws. However, this fact is mitigated with the establishment of the Office of Missing Persons, which is empowered to enumerate and recommend course of punitive actions (if feasible) from all such disappearances from 1948 through existing laws.

Those who attempt to correlate these enforced disappearances to similar acts by LTTE and JVP in order to bring a measure of justification; a simple response being, state security apparatus is not a terror outfit. The very purpose of this legislation is to prevent the State acting similar to a terrorist group. The blame for this unfortunate state has to be taken by both; political leadership that governed this nation and the leadership of the security apparatus for having allowed enforced disappearances to be executed by the rank and file. Hope this legislation will act as a reminder for the current and future leaders for the need to be more vigilant to end this culture of impunity.

This proposed legislation will not bring justice for the families of 1000s’ who have disappeared. The below comment is made as a mark of honor to all those victims and targets all who executed such criminal acts; including all leadership elements that condoned and supported Enforced Disappearances:

“WHEN EACH DAY DAWNS AND YOU WAKE UP AND UNTIL YOU GO TO BED; AND EACH AND EVREY TIME WHEN YOU SEE YOUR CHILDREN, NEPHEWS AND NIECES AND ENJOY THEIR COMPANY AND WARMETH; REMEMBER YOU DENIED THAT LOVE AND WARMETH TO MANY PARENTS LIKE YOU; AND

ALWAYS REMEBR THIS ‘FACT’; YOU ARE A CRIMINAL AND MURDERER – AS LONG AS YOU LIVE; EVEN IF YOU MAY ESCAPE LEGAL JUSTICE; AS  THIS ‘FACT’ WILL RESONATE YOUR CONSCIOUS TILL YOU BREATHE THE LAST”

An appeal to Mr. Mahinda Rajapaksa MP – In keeping with the clarion call you made in 1990 and the recommendation of the Commission appointed by you; Take the lead in spearheading the proposed bill on Enforced Disappearances to make it an Act of Parliament through a unanimous vote to end this culture of impunity.  This very act will bring you merit and send a strong signal to all detractors.

“A WAR HERO IS NOT A CRIMINAL AND A CRIMINAL IS NOT A WAR HERO”

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Latest comments

  • 1
    0

    Mr Kumaresan,

    A well argued presentation. Thanks. However the spirit of the article, the empathy it attemps to evoke seem to go counter to the emphasis that it will not be ‘retrospective’ which provides no consolation to the cases on hand. Why? A sleight of hand trick to get the parliamentary approval? Can you furthr clarify to us this claim that ” big countries have avoided this” . Is it true and again why?

    Soma

    • 0
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      Thank you Soma, Yes the limitation to hear past cases is a constitutional impediment. There are pros and cons ; one seems justifiable to prevent an undemocratic ruler to create a law to fix his opponents. It is not a trick and it applies to all acts passed by the parliament.

      In liberal democracies to a great enforced dis. extent has been well managed.Leadership, rank and file are made accountable. However there are strong allegations of enforced disappearances during Bush era war on terror on foreign soil

      • 0
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        “”allegations” of enforced disappearances during Bush era war on terror on foreign soil””
        Have you asked yourself why Obummer does not comment about The Donald?
        According Pentagon insiders more Americans and world’s people died during Obummer reign than stuttering Bush’s era therefore he is still loved by the people.
        Your Nandikadal was approved by none other than tip cut Obummer and he did in fact try to populate the space with tamil speaking muslims against the backdrop of Modi.
        No wonder the island is notorious as the Dope Hub of the Indian Ocean.

  • 0
    0

    Why you did not elaborate on things you said. I don’t think officials who followed the orders should be prosecurted. Instead those who gave orders and if there are any ransom collectors they should be punished. I think your article did not go that far.

  • 0
    1

    I can not understand why you waited this long.

    • 0
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      Jim S ; This article is about a bill gazetted in March 2017 and there is a debate in the public domain that made me to write. I understand your grief on the lives lost but people have voiced Loud and Clear; I have quoted MR’s cry in 1991. Also Jim S; he also went to UNHRC and handed over a petition. What else – it was a well known fact. Hence I am not telling anything new. May there be no more grief to any parents in future

  • 0
    0

    Mr Kumaresan
    For the benefit of those of us who have not read the bill, can you futher clarify a very important point. The opponents
    of the bill claim that in case a “missing” person is “found” that person has the option of still remaining in the missing list! Is that correct?
    Soma

  • 0
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    Mr Kumaresan
    One final point please. Where are these bills drafted ? I mean here in our AG’s dept. or in Geneva?
    Soma

    • 2
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      I think Sri Lanka has a competent Legal Draftsman Dept. Why not take a call to them and and clarify , where it was drafted to clear your doubt? Pls post the response to educate us!!!! If you not an opponent ; do not bother about them.

      • 0
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        Thanks mr Kumaresan. My most important query seems to have escaped your attention:
        The opponents
        of the bill claim that in case a “missing” person is “found” that person has the option of still remaining in the missing list! Is that correct?
        Soma

        • 0
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          You delve in cuckoo land with the devil.
          A simple DNA test (swab and mins) using the 4x4x4 inch Ottawa product confirms the `found`. Then the register can be updated.
          It is common knowledge that nothing gets lost but goes missing.(police for insurance)

        • 0
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          “..opponents of the bill claim…” Soma your use of this phraseology encourages me ; you are not an opponent ; Hence, you are best to advise them; In addition to your learned reasoning this too may be helpful – tell them this bill will protect their sons and daughters being kidnapped and killed ; No one will like that happening to their kirh and kin – Soma – of course we are unfortunately in a society that cheer other mothers children dying for our racist egos. Thanks once again for not opposing the said bill.

          • 0
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            Mr Kumaresan
            I oppose the bill IF it contains this ridiculous clause to the effect that::
            In case a “missing” person is “found” that person has the option of still remaining in the missing list!
            I can’t be taken a fool for feeling sympathy on a fake disappearance.
            Soma

            • 0
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              Ha Ha “Cat is out of the bag”. Have a good read of the text. Hope, you called Legal D Dept???

              • 0
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                Mr Kumaresan
                Your bag is full of cats. I wanted to untie the knot.
                Soma

                • 0
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                  soma, the coward from the village of the south.
                  1) with a vulgar mind you are assuming and that is a non plus.
                  2) you have not acceded to his request of contacting the Legal D Dept because your assumption is like holman.

                  It helps to keep your broken arm inside your sleeve.

                  • 2
                    0

                    Aiyo ikarat

                    Being part of the Sinhala /Buddhist noisy Ghetto building minority somass ji is not interested in finding answers nor solutions to any of the political problems and moral dilemma.

                    He is being pedantic only to the extend of scuttling any or all fruitful discussion. somass ji think he is clever but the readers think he is a clever dick.

      • 2
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        Arun Kumaresan

        “where it was drafted to clear your doubt?”

        By now you would have known that somass ji asks the same question over and over again not because he wants to learn about the subject being discussed but he thinks he is too clever who could divert the most difficult and easiest political and human rights questions into non issues and irrelevant.

        In fact over the years somass ji has been acting exactly like my Great Grandma who asks the same question every 5 minutes although she get the same answer. As a Sinhla/Buddhist ghetto building fascist either he has lost his mind or he derives satisfaction from annoying the sane minded readers. However he is no longer effective in what he has set out to do.

        If I were you I would respond to readers who are secular, believe in democracy, equality, human rights, justice, …………………………………

        • 0
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          Native

          1) Why did Mr Kumaresan start off with that cheap lie – that it is not applicable for the disappearances that took place during the war but those that MAY occur from the day the bill is passed. If so what consolation is there for the mothers who are searching for their children?
          2) You say I think that I am clever. Where can I learn that science of mind reading Native? Only I know my difficulties in convincing the racist donkeys that their illogical, self contradictory, hypocritical, crafty agenda will not do any good to Tamil speaking people scatterred across the island. Back of my mind I envy you – if only I were half as clever as Native Vedda I could achieve some results.
          3) I am compelled to ask the same question every 5 minutes because the racist donkeys keep on repeating the same thing every 5 minutes.
          You should have completed your last para:
          If I were you I would respond to readers who are secular, believe in democracy, equality, human rights, justice, WHO COULD BE EASILY FOOLED.
          Soma

  • 3
    0

    “”“A WAR HERO IS NOT A CRIMINAL AND A CRIMINAL IS NOT A WAR HERO”

    And General Patton: no bastard died for his country but by killing the other bastard.-
    War heroes for the buccaneers!! They did not do it by any logic did they? but by their tentacles and were glorified.

    No matter what excuse politicians dream up for waging war, the underlying cause of all wars is economic in nature.

    War Heroes it’s time to pull dung carts the way you were born in 1948 and stay there.

  • 0
    0

    Thank you Arun Kumaresan for this very informative article. This must be compulsory reading material at Kotalawela Defense University but most likely the learned professors there may use it an example in treasonable material!
    A correction to your “The history of enforced disappearances dates back to 1971;……………”
    In mid sixties, school boy activists in Jaffna were taken away in police jeeps – white-van idea was not there nor were ideas for liberation movements. To instill terror, some were found severely decapitated. Some were never found.
    Arun quotes the then firebrand MP Mahinda Rajapaksa, “I took the wailings of this country’s mothers. Do I not have the freedom to speak about them? It was the wailing of those mothers which were heard by those 12 countries”
    Yes, an example of how power corrupts (or corrects ?) the chinthanaya.
    I hope the Minister of Justice reads this article.

  • 1
    3

    Collateral damage has doubled in the 6 months since His Excellency Trump became President. Double the number of civilians have died in the last 6 months after Trump changed rules of engagement to allow battlefield commanders to take decisions. He wants to bomb the shit out of ISIS.

    Saudi Arabia deliberately kills civilians in Yemen; US is very silent because KSA is our ally. We are selective in our targeting of nations.

    Thank you for differentiating issues. War crimes as the massive number of war crimes committed by US troops in Vietnam will never be discussed. This includes Agent Orange, rape and murder of women and children and deliberate wiping out of civilians; not just rage killings. cutting off ears and thumbs of VC; droppping VC off Helicopters were all part of what we did. But we can do what you cannot do because we are the most powerful nation on earth.

    • 4
      1

      Someone needs to rule, without a ruler tolerance is a concept never understood by I_slam humanity polygamist.
      Eg. The US is the only nation that is not part of International Standards of measurement. IS.
      The USA is American Dream for all provided you are prepared to blend with the culture than live sub human lives. Decent folks from asia live there for over a hundred years and I do know them- they don’t think like you and your rumoured recent figures.

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