Enforced disappearance: Call the crime by its name

According to the Presidential Media Division, during his recent meeting with United Nations Secretary General Antonio Guterres, President Gotabaya Rajapaksa claimed his Government would “take immediate action with regard to missing persons and expedite efforts such as issuance of death certificates”. The statement alone demonstrates the sheer lack of comprehension of the magnitude of the issue and the callous disregard for victims and their families who have been seeking justice for decades for this heinous crime.  

Firstly, the terms “missing” and “disappeared” are not interchangeable. Numerous people could be missing after a conflict for several reasons. However, enforced disappearance is a specific, autonomous crime, often committed by agents of the State and the disappeared individual and his or her family are victims of a crime. In 1996 when over 1,000 soldiers were unaccounted for after the Mullaitivu debacle they were recorded as missing. However, former LTTE commander, Sivakami Subramaniam alias Thamilini in her book, written years later, says that over 200 soldiers captured after this battle were executed by the LTTE.

Those soldiers who were executed, as long as they are still missing, are also victims of enforced disappearance. They deserve justice, as do the tens of thousands of others who have been subjected to this crime since 1971. The acknowledgement of the crime of enforced disappearance, instead of bracketing them all as “missing people” would be a first step in this process.

The magnitude of enforced disappearances is unprecedented in Sri Lanka. The country has the world’s second-highest number of cases registered with the United Nations Working Group on Enforced or Involuntary Disappearances. The Government’s own commissions of inquiry have registered over 46,000 disappearances in the south and 23,000 in the north and east. Since the 1980s, an estimated 60,000 to 100,000 people have “disappeared”. Issuing a death certificate is certainly not a remedy for the crime of enforced disappearance and such an act would put a knife through the hearts of thousands of families who still believe their loved ones are alive and being detained illegally somewhere. It was for this reason that the previous Yahapalanaya Government took action to issue Certificates of Absence to family members of the disappeared, to allow them to proceed with legal matters, including the transfer of property, finances and obtaining compensation while retaining the right to search for their loved ones and seek the truth regarding their disappearance. The victims of the crime, including their families, have a right to this truth. Even if these persons are presumed dead their families have a right to know the circumstances of their deaths and those responsible.   Even though the previous Government took some commendable steps towards correcting this grave injustice, most of that work has now been reversed. In 2018 Sri Lanka established the Office on Missing Persons (OMP) and in 2016 acceded to the International Convention for the Protection of All Persons from Enforced Disappearance. According to international law as long as a person remains missing the crime of enforced disappearance is ongoing. Therefore, even though Sri Lanka acceded to the ICED in 2016, it can prosecute anyone for a person who disappeared before the country became a signatory, as long as the person is still missing. Yet to date, there has not been a single prosecution under the CED Act, nor a single case resolved by the OMP. The current Government has in fact stifled even cases that were proceeding in courts of law. Most prominently, the case of disappeared journalist Prageeth Ekneligoda has now stalled with severe interference at the highest political levels to absolve the military intelligence personnel accused of the crime. 

In this backdrop, President Rajapaksa’s assurances to the UNSG about ‘immediate action’ regarding the ‘missing’ rings hollow and insincere. His administration has in fact obstructed the search for justice for those involuntarily disappeared. Sri Lanka must address this ugly legacy if it stands any chance of moving forward as a civilised nation. A first step for this President and his administration would be to call the crime by its true name: Enforced disappearance.