Last week the Court of Appeal delivered an important decision issuing notice to the Sri Lankan army to appear before the judge on 28 March for intentionally concealing information on the number and names of the LTTE cadres who surrendered during the final phase of the war. The court noted that the army has not disclosed the names nor the number of individuals who had surrendered during the closing phase of the ethnic conflict. Many of these surrenders are believed to be dead, extrajudicially executed by the State.
Sri Lanka has an ugly history of enforced disappearances and extrajudicial killings. Yet there has hardly been any justice for the tens of thousands of victims. In such a backdrop even the low bar of the Court of Appeal instructing the military to cooperate with the judicial investigations has to be considered as progress.
The 1971 JVP insurrection which lasted a mere five weeks resulted in over 12,000 enforced disappearances and extrajudicial killings by the then SLFP Government. That number is in the range of 60,000-100,000 for the period 1987-89 during the second JVP insurrection when a UNP administration committed untold atrocities in the south. The Government’s own commissions of inquiry looking into this period have recorded over 46,000 disappearances. The number of extrajudicial killings and enforced disappearances in the northern theatre of violence between 1983 and 2009 ranges in the tens of thousands. A committee appointed by former President Mahinda Rajapaksa recorded 23,000 to have been subjected to enforced disappearance in the former conflict zone while the actual number is much higher.
According to international law, as long as a person remains missing, the crime of enforced disappearance is ongoing. Therefore, the cases of these tens of thousands of individuals who have been subjected to enforced disappearance by the Sri Lankan State are “continuous crimes” and no number of years passed is going to end the ongoing crime.
Despite 20 mass graves having been partially exhumed over the last three decades, hardly any family has had the remains of their loved ones returned. Instead, officials, including magistrates and forensic experts involved in these excavations have been transferred abruptly, police have delayed carrying out judicial orders and there has been a concerted effort to deny justice. In this regard, the much-touted Office on Missing Persons (OMP) established in 2016 through an Act of Parliament has been an abysmal failure. Despite its mandate to carry out investigations of ‘incidents of missing persons including those missing as victims of abduction, persons missing in action or otherwise missing in connection with armed conflicts, political unrest and civil disturbances’ to date it has failed to identify a single victim and assist in any judicial process to bring those responsible to justice.
The killing of surrendered combatants is a violation of international humanitarian law and an outright war crime. If the Sri Lankan military is to redeem itself, it must come clean with the events that occurred at the end of the conflict. It needs to disclose the numbers of individuals who surrendered and their identities. Each of these surrendered combatants were the responsibility of the State and citizens of Sri Lanka. If any of them had been extrajudicially killed or subjected to enforced disappearance, then the military must disclose on whose orders such actions were taken. There are enough laws to deal with those responsible for such crimes. All that has been lacking is the will to do so.
Until the Sri Lankan military faces its brutal past and is held accountable there is no moving forward, not for the victims, those demanding justice nor for the military.