By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

The mass grave in Matale uncovered late last year and the ongoing demands for independent and credible investigations into the fate of disappeared persons during the last days of the fighting between government forces and the LTTE in 2009 have at their core, the common element of impunity and a common cry for justice.

Pitiful legacies of future generations

So when pictures circulate of the late LTTE leader’s twelve year old son looking apprehensively at his captors, being given a snack inside what appears to be an army bunker with the concluding photograph being of his being shot, (whether the pictures are doctored or not), the sheer inhumanity of what Sri Lanka has been reduced to, should surely grip us all?

These pictures should be ranked alongside the grisly photographs of child monks butchered at Arawantalawa by the LTTE in 1987 and the thousands of children killed by state and non state actors during the Southern insurrection and the Northern war. These are the pitiful legacies of our future generations.

Killings are permitted in times of emergency

Certainly Sri Lanka’s legal framework has permitted and indeed, actively encouraged crimes such as extra judicial executions and enforced disappearances. In view of state complicity in acts of terror, it was not surprising that when national and international pressure intensified in the 1990’s in regard to taking action in law against perpetrators of abuses during the second JVP insurrection, good investigations and prosecutions were rare and, if at all only against junior officers.

The rationale was that even if grave crimes were committed, these were in situations of extraordinary stress for the average soldier/police officer and therefore should not be measured against a high standard of accountability. Correspondingly, the lack of political will in pursuing such cases to a logical conclusion was clearly seen, whether they concerned enforced disappearances in the South or in the North and East.

Even in instances where political will was manifested at the highest levels, the obduracy of the military establishment prevented it being translated into concrete action. A good example of this was in January 1996 when then President Kumaratunge directed the Army Commander to place 200 service personnel on compulsory leave, following their repeated involvement in gross human rights abuses as evidenced in the Disappearances Commissions Reports. However, the order was not implemented.

Total failure of the legal system

Generally state apathy predominates from investigations to prosecutions of enforced disappearances and extra judicial killings. Under the Rajapaksa Government, this apathy has been transformed into deliberate state policy. Where a non summary is required, the police generally prosecute with state counsel appearing only in rare cases judged to be of special significance. The non-summary inquiry proceeds at a lackadaisical pace, taking up to several months if not more and the vital task of gathering evidence and conducting good investigations is left entirely in the hands of the police with no stringent supervision either by the magistrate or by the officers of the Attorney General.

Interminable delays in filing indictments, delays in the non-summary inquiry and further delays in the substantive trial proceedings are common factors. It is common for example for the lapse of several years to pass before the first step of filing indictment is taken and for delays to be present thereafter in the trial process. This pattern is also commonly seen in the cases of torture of ordinary persons in the South; in cases filed under the Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994 (hereafter Anti-Torture Act of 1994, indictments have been pending for almost two years in the relevant High Court without being served on the accused. The defence advanced is that the delay is due to the backlog of cases in the Court. Lawyers appearing for the victims complain of a lack of interest on the part of the state in conducting prosecutions and point to non-appearances in court on the days that the trial is due to be conducted and frequent applications for postponements as manifesting this lack of interest

Continuation of mass graves from the nineteen eighties

The Matale mass grave consisted of skeletal remains of more than 150 people discovered by chance by workers building a facility for a hospital. Initial forensic tests suggested that this was the scene of a crime due to the injuries found on the remains. Commonsense led many to the inevitable conclusion that this was a burial site for persons extrajudicially executed and disappeared by the Government of the United National Party during the second JVP insurrection (1987-1991).

It is striking that even after two decades following the insurrection, the question of mass graves in regard to that period continue to be uncovered.  Requests have been made for proper forensic examination and documentation of these remains but these calls will of course, not be heeded to. In the case of disappearances of Tamil civilians during 2009, the very fact of this is denied at point blank range by the current Government.

Common cry for justice

It does not matter that the victims of the Matale mass grave were Sinhalese or that those who disappeared in 2009 were Tamil. They both share a common fate. Their cries are intertwined with the cries of thousands of others who have shared this same fate throughout past decades, at the hands of all governments. It is this commonality that needs to be centered within the accountability debate concerning Sri Lanka, both within these shores and beyond.  The brutalities committed by each Government in Sri Lanka has merely been an extension of the brutalities committed by previous Governments but with even less humanity.

And indeed, these barbarities are also a reflection of what non-state actors, particularly the JVP and the LTTE did themselves, to those who offended them or were considered as traitors. No single party, state actor or non-state actor, President or Opposition Leader has a monopoly on responsibility for innocent blood spilled in Sri Lanka.

It is only when we free ourselves from these bloody political legacies that the killing of children in Sri Lanka will stop.