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”