11 February 1999

Ms. N. Font de Berlioz
United Nations Working Group on Enforced or Involuntary Disappearances
Room D-121, U.N. Centre for Human Rights
Palais de Nation
1211 Geneva 10
Switzerland

In Section II of the document Economic and Social Council Document GENERAL E/CN4/1998/43 (dated 12 January 1998) Information Concerning Enforced or Involuntary Disappearances in Various Countries Reviewed by the Working Group, the Sri Lankan situation is discussed from paragraphs 341 to 350.

1. In paragraph 341 the Working Group states: "The Working Group also wishes to remind the Government of its obligation to investigate all outstanding cases of enforced disappearances and in this respect looks forward to receiving the reports of the three presidential commissions of inquiry."

2. The reports of the three Presidential Commissions of Inquiry, [The Commissions on Involuntary Removal or Disappearance of Persons] have been issued to the public and we believe the Working Group to have studied the contents and recommendations of these reports.

3. In paragraph 347, The Working Group states: "In the reports of the three presidential commissions which investigated past allegations of disappearances, the Government has stated that the perpetrators will be prosecuted." It must be noted that the Commissions referred to are fact finding commissions. They can only make recommendations for prosecutions and such recommendations are not necessarily binding. Further, being fact finding inquiries, the three Commissions' inquiries do not amount to criminal investigations. The Commissions did not have the resources to conduct criminal investigations. As far as the personal liability of offenders is concerned, the prosecution of cases requires the conduct of criminal investigations. In the absence of such investigations, the alleged perpetrators may claim that there is no evidence against them. In fact some have already done so. Thus, between the inquiries of the Commissions and the prosecution of offenders there is the need for criminal investigations. So long as there are no such investigations there can be no prosecution with regard to tens of thousands of disappearances. The Working Group needs to pay attention to this real situation. Unfortunately, such awareness and attention are not reflected in paragraph 347 cited above. We annex a submission made by the Asian Human Rights Commission to the continuing Commission of Inquiry into Disappearance of Persons relating to this matter of criminal investigations.

The following comment from one of the Commission Reports is relevant:

"It is unreasonable to expect that the further evidence required for the identification to pin individual liability in the "vertical structures" would be available to the petitioners before us. (E) Only Persons who were within the system itself either decision-makers, participants, or as witnesses to same could provide such evidence. The political dimension of the events in respect of which responsibility is sought to be identified is very clear, however from the few witnesses with personal knowledge of the times who came before the Commission. We have analysed their evidence in the foregoing paragraphs.

The South African Truth and Reconciliation Commission and some Latin American ones have provisions enabling the admission of participation and consequent amnesty, to witnesses who came before the Commission.(page 49) (Emphasis Ours - ALRC)

Finally, on the issue of "Responsibility", a distinction needs to be drawn at all times in the identification of "those responsible" where the State is under the control of a civil government, as in our case, from the situation where the State is in the control of a military regime. Whatever may be said in support of an identification and punishment of a few military leaders in the situation where the state is in the control of a military regime such a limited exercise can never suffice or be condoned in the situation of a state which is under the control of a civil government." (page 49) (Emphasis ours - ALRC).

4. The following findings from the three Commissions are also very relevant for further observations and recommendations the Working Group may make this year:

(a) Total number of inquiries 26,935; Completed 16,800; being investigated 10,135

That the total number of cases inquired into by the Commission amounts to-16,800. Further the continuing Commission, which has mandate up to end of April 1999, has received 10,135 more complaints into which it is investigating now, according to an interim report submitted to the government by the Commission on 31 December 1998.

(b) Systems involvement and a systematic attempt to keep these deaths/disappearances from being recorded:

"A feature that struck us most forcefully in our inquiries was the utmost care that had been taken not only by individual perpetrators but also by the system itself to present these occurrences from being reflected in the official records of the country. Starting with the refusal of the local police to record complaints-which was a general feature in all three provinces, through the blatant use of vehicles without number plates, right up to the refusal it allow the bereaved to take possessions of corpses identified by them let alone obtaining death certificates in respect of them, there is clear evidence of a systematic attempt to keep these deaths/disappearances from being recorded in the official annals. A nation which takes pride in the fact of having a recorded history of thousands of years should not leave a dark patch." (page-xv) "They exemplify a generalised practice, which in its turn warrants the reasonable inference that this practice denotes a generalised direction NOT to investigate such incident." (Page 55)

(c) The word "disappearance" is only a euphemism for the death caused by extra-judicial killings:"In the 7761 cases (88.8%) inquired into the bodies of the victims were found only in 1513 (19.4%) cases. Others have disappeared without a trace. However in the given context, the word "disappearance" is only a euphemism for the death caused by extra-judicial killings." (page 27)

(d) State responsibility: what had happened went for beyond what could be attributed to a break-down of relations between the particular perpetrators and the victim. While seeking to identify the person who had been the immediate link in bringing the 'system' into operation against them, they would describe the prevalent situation graphically and in concrete terms."(page 30) "The common features of the nration by thousands of humble petitioners in respect of thousands of abductions and disappearances, bore powerful witness to the fact that what we were looking at was an orchestrated phenomenon and not a series of isolated instances explicable in terms of "excesses" by individual transgressors" (page 32)

(e) Clandestine nature of the operation-and torture:

"A valuable pointer to the fate that befell many of the abducted is to be found in the evidence of the many returned detainees who have come before the Commission whether as petitioners on their own behalf or as witnesses to the fate of others. They constitute a powerful credible body of evidence on:

(i) The serious, often fatal injuries suffered by the prevalent practices of torture by the authorities with the attendant issue of disposal of bodies.

(ii) The transport of detainees to undisclosed destinations in circumstances loudly speaking to the clandestine nature of the journey-Removal of number plates/ affixing of false number plates to the vehicles, use of fire arms, implements for digging old tyres taken along, on these journeys being inconsistent with the object of the journey being a lawful one.

(iii) In some instances "confession" to participation in such "extermination" under duress etc." (page 33)

(f) Age group:

Out of the 16,800 cases recorded in the reports by the three commissions 14.83% are persons below the age of 19; A further 28.05% are below the age of 24. (this does not include the figures from among the 10,135 cases that are being investigated by the continuing commission.)

(g) Number of disappearances caused by state agents:

Out of 7239 cases of disappeared persons, 4858 are by agents of the state/para military groups in collaboration with them.( page 29 )

(h) Abduction instead of arrest showed intention for killing:

"That "abduction" rather than "arrest" was the preferred method of operation, is a clear indication that physical elimination of the persons taken-in was not ruled out. Given, additionally the unrecorded nature of the initial abduction and detention the temptation to adopt 'elimination' as a practice was inevitable."( page 32)

"The Elimination of "potential groups" had become a permitted tactic of counter-subversion. The petitioners before us spoke of this from their personal experience.

* "Broilers"

A practice of keeping in unrecorded detention "stocks" of detainees of a certain age-group, who had been taken into custody in combing-out operations or casually off the road/beach was evident in several instances from the evidence of returned detainees. These persons then disappeared without trace after being taken out of the camp generally following on a subversive act that had caused loss of life or damage to property damage or on the camp being dismantled. Given the practice of 'reprisal killings' sinister significance attached to these disappearances from State custody. Hence the slang of the period :

"Broiler" = an article for consumption." (page 32)

(i) Mutilated bodies at public places:

The evidence of members of the public was that mutilated bodies at public places was a common sight. (page34)

(j) Mass graves:

Mass Graves came into existence contemporaneously. The inference as to who were the creators is inescapable when the massive logistics entailed, not to mention their proximity to locations under state control, are taken into consideration. (page 34)

"The existence of twelve Mass Graves have been reported to this Commission. They are:

1. The Hokandara Mass Grave

2. The Essella School Mass Grave

3. The Wavulkelle Mass Grave

4. The Walpita Government Farm Mass Grave (2 to 4 are in the Gampaha District)

5. Ambagahahenakanda Mass Grave

6. Bemmulla Mass Grave

7. Kottawakella, Yakkalamulla Mass Grave - Galle District

8. The Dickwella Mass Grave at Heendeliya

9. Diyadawakelle, Deniyaya, Mass Grave

10. Wilpita Akuressa Mass Grave (8 to 10 are in the Matare District)

11. Angkumbura Mass Grave - Matale District

12. Suriyakanda Mass Grava - Monaragala District."(page 117)

(k) "The political dimension:

Acknowledgement of the political dimension inherent in the scene revealed by the evidence before this Commission, is a necessary response to the trust and confidence reposed in the Commission by the thousands of witnesses who spoke openly placing their hard-earned experience, and perceptions on record.

(i) The Public Perception.- The Public Perception was that the conspicuous spectacle of impunity could not have existed without the complicity of the political leadership. The various allegations before us of the close participation of the local politicians in the exercise, the various allegations of 'informers' who functioned as the channel of mis-information from the politicians to the security Forces, the allegation of 'Lists' of names of political enemies being supplied to the Security Forces for elimination, are all based on this perception. (Emphasis ours - ALRC)

(ii) Confirmation by 2 Senior Officials. - This perception of the petitioners has found confirmation in the evidence of two Senior officials of that time, one of the Police the other of the Army, who have given evidence under oath on the role played by politicians of the governing party in the counter-subversion exercise, the practice of the preparation of 'Lists' of names by them, and the issue by them of illegal orders, for execution by the Police and Army respectively

Mr. E. E. B. Perera, Inspector General of Police, 01.08.1988 to 18.11.1993:

When the second insurrection-wave struck the Police Force was dependent on informers. Hence the phenomenon of Members of Parliament who were providing the political direction to the anti-subversive drive being supplied with 'Lists' of names by informers, who in turn passed them over to the Forces and the Police. In 1971, the political authority at District level was required to give support to the Forces. By the second insurrection the Provincial Councils had come into operation. There was an administrative direction that the Deputy Inspector General (DIG) should be subjected to the control of the political authority usually the Chief Minister, notwithstanding the fact that Police powers had not been developed to the Provincial level under the 13th Amendment.

This confirms the practice of 'Lists', whose source was the local politician. It also clarifies the path by which the Security Forces came to be used in the narrow interests of particular politicians.

Further it makes clear that the police had to put into effect directions that were clearly outside the law.(Emphasis ours-ALRC)

Lt. General Rohan Daluwatta, Commander Sri Lankan Army, has stated

While I was co-ordinating Officer, Ratnapura certain political pressures were brought to bear on me. I was given a list of names with the direction to take them into custody, that they were JVPers. I received the List from a former Minister.... When I checked the list with the Police, I came to know that they were SLFPers. I was told, that area could be cleared were I to catch them.

(iii) The use of the Forces and Police in the Narrow Interests of Politicians.- This was spoken of by two Inspectors-General of Police in their evidence before us.

Mr. L. D. G. Cyril Herath was IGP December 1985 to 31.07.88. Mr. Herath said:

In the promotion of Udugampola, SP over 15 more senior officers, to the rank of DIG, I saw the portents of the plan to use the Police Force in the narrow interests of politicians. It was clear to me that alternative structures of command were being put in place within the Police force for the purpose. I realised that a system of promotions to this effect was being put into operation.

W. B. Rajaguru-IGP 29.07.95 to-date. Mr. Rajaguru, the present IGP stated:

I am aware that there were specific instances where rapid promotions were given. One was that of Mr. Premadasa Udugampola who was an Inspector of Police in 1977 and had rapid journey through the ranks of A.S.P., S.P., Senior S.P., and became Deputy Inspector General by about 1988 (in 10 years time). At that time it was mentioned that this officer had moved over 180 other officers at different stages.

Among the rank and file there was a degree of disillusion and heart-burn, for there were persons who had become able to move upward quite freely within the police. This disillusion affected discipline.

A specific instance I will give is the Mulkirigala By- election. At this time found that contrary to specific orders made at Head Quarters there were certain police officers moving about the electorate. At this time I was DIG Greater Colombo and Southern Range. I found that Mr. Udugampola, then SSP Gampaha had moved into Mulkirigala electorate on his own, He had brought with him several officers in charge from his division. There were no orders for him or other officers in charge to perform any duties within the electorate. Later, there were many complaints received about bands of police intimidating the public and committing acts of thuggery; and there was evidence that the police had beaten up voters to prevent them from going to vote.(Emphasis ours- ALRC)

My experience is not limited to the day of election, This feature I have described was continued police thuggery. The complaints came from Kirama Weeraketiya, Walasmulla and Middeniya. It was organised and widespread

We have also noted that former Inspector General of Police Mr. E. E. B. Perera in his evidence before the Presidential Commission of Inquiry into Disappearance of persons, unlawful Arrest of Persons and the Operation of Places of Detention at the Batalanda Housing Scheme" had stated that

There were several occasions when we had to put into effect directions that were clearly outside the law. Not just one occasion. It was undoubtedly due to the fact of undue interference by the Executive that Ronnie Gunasinghe was not taken into custody. (Emphasis ours-ALRC)

Some instances of the political control of the structures follow.

(i) The Lakshman Perera Case: Lakshman Perera was a dramatist and poet and Pradeshiya Sabha MP of the Governing Party. Soon after posters appeared in and around Colombo advertising his satirical play termed "WHO IS HE? WHAT IS HE DOING?", he was abducted from his home and disappeared. His wife's identification of the abductors is as follows:

I do not see personal enmity to be the cause. This abduction is an indication of the hollow nature of the profession of democracy by the ruling party. We were at the police station very shortly after the abduction, but the police displayed utter indifference.

(ii) The Richard de Soyza Case : The case of Richard de Soyza Journalist and broadcaster (who was abducted on 18.02.1990. is another instance.)

(iii) The Adiruppu Street Case : A UNP organiser of a Colombo Central area was abducted by an armed gang who came in modern vehicles in the night. The incident, apparently, is a consequence of an intra-UNP leadership struggle. His wife giving evidence before the Commission said:

There was no UNP high-up who didn't know my husband. And yet no one would move in the matter of his abduction and disappearance.

The disappearance from police custody of suspects regarding the assassination of a political leader during this period is a striking instance of the practice under consideration.(Emphasis ours-ALRC)

(i) The Disappearance from Police Custody of Suspects Regarding the Assassination of a Political leader: The Vijaya Kumaratunga Case

Vijaya Kumaratunge, Leader of the SLMP, was assassinated on 16.02.88. Lionel Ranasinghe and Tarzon Weerasinghe were taken into Police custody as the suspected assassin and accomplice respectively. The mother of Lionel Ranasinghe and the sister of Tarzon Weerasinghe, have stated to the Commission that these persons disappeared from Police custody while they were detained at the 4th floor of the CID Headquarters in Colombo. Tarzon Weerasinghe's sister produced to the Commission a letter from the ICRC representative who visited this place of detention had been informed by a co-detainee that this person had disappeared while in the custody of the CID in March 1990.

The Commission was unable to summon the said witness as the ICRC informed the Commission that they are unable to disclose the co-detainee's identity to the Commission. The CID's position to the IRP had been one of the denial of detention of Tarzon Weerasinghe. The mother of Lionel Weerasinghe stated that she visited her son in the custody of the CID and the last time she visited him was 16.09.89. She was then informed that he was in remand custody. Both petitioners have had no further information about these persons' fate until they read newspaper accounts of the evidence trasnpiring at the Special Presidential Commission of Inquiry into the assassination of Vijaya Kumaratunga.The finding of the Commission of Inquiry into the assassination of Vijaya Kumaratunga on the disappearance of Lionel Ranasinghe from custody is as follows:-The preceding account clearly shows that the conduct of the police regarding the transfer of the suspect from the CID to Homagama, his interrogation for five days at Homagama, the ambush of the police party and the escape of the suspect is laced with falsity at every turn. The evidence of the respective police officers stretches credulity to breaking point and more.That Commission's finding on the disappearance of Tarzon Weerasinghe from custody is as follows:- The evidence is, that Tarzon Weerasinghe was not seen alive after his detention in the CID.It is in evidence before us that no disciplinary inquiry or action of any kind was taken against the errant police officers. The Masssacre on the Eve of the Presidential Election988 at SLFP Chief Organiser"s Residence

NF was the SLFP Chief Organiser for Panadura at the Presidential Election of December 19, 1988. His residence was the centre for nominating polling agents and other campaign work. On December 18, 1988 he secured the release of some of his supporters who bid been arrested by the police on the false pretence that they were JVP and returned borne around 10.30 a.m. where several members of the party Youth League including the Branch Secretary and the treasurer had assembled. Within minutes the residence was sprayed with bullets. Eight of his supporters had been killed on the spot; another had succumbed to his injuries later. The police had arrived within minutes at his house and given him protection. On the previous morning, December 17, two persons clad in army uniform had called over at his house and had inquired about the state of his security. After requesting for some posters of the SLFP Presidential candidate "to be put up when she wins" They had identified themselves as personnel attached to a temporary army camp at Wadduwe.

NF: Even after such and incident when so many people were killed in my own house the culprits have not been found. There were posters against me by the JVP. But I had no direct threats from them.

My House is situated two or three miles from the police station. But they arrived within a few minutes at my house. When I reflect on all these matters I think the Army was responsible for this incident and that the police also was aware of it. (Emphasis ours-ALRC)

This incident is a clear indication of the political dimension of the use of the structure.

(vi) The Promotion of some Security and police officers found to be in breath of fundamental rights by the Supreme Courts:

When the Supreme Court in a 5-Judge Bench decision found a Viharadhipathi had been prevented from exercising his fundamental rights to "Freedom of Speech and Expression including Publication" by a police officer, the state media announcing the decision that evening announced also that the said police officer had been given a promotion. The incident that had violated the Viharadhipathi's fundamental rights was the seizure of posters objecting to the Referendum, at the time of the Referendum 1982.

The same juxtaposition is discernible in the circumstances of the failure to investigate, prosecute or hold disciplinary inquiry into instances where the courts has found a Forces or Police officer to have acted in breath of a fundamental right or to be responsible in a Habeas Corpus Application.

The inescapable and irresistible inference deducible from the entirety of the proved facts in this case is that in actual fact no such applications for detention orders and detention orders were in existence on the third of September 1988. But that these documents were fabricated later with collusion between the first accused and witness Udugampola for the avowed object and authority on an otherwise illegal arrest, illegal detention and the illegal removal of a mutilated Lyanarachchi to Sapugaskanda so as to mislead and deceive the ultimate deciding authority as to when these injuries were in fact inflicted. (Emphasis ours-ALRC)

The court went on to state, as part of its judgement, as follows:

It is the fervent hope of this court that the Hon. Attorney General the law enforcement Agencies and the executive will in the near future probe and investigate into the issue as to who caused this death, using the varied facts, matters and information disclosed in these court proceedings.

No steps, as directed by court, have been taken to this date. Nor dies the service record of Udugampola show that any steps have been taken by way of disciplinary inquiry or any other v. this officer departmentally. By the time the judgement was delivered in the Liyanarachchi case, 18.03.91 Udugampola was Head of the newly established Bureau of Special Operations, on presidential directive.

Case of Sunil of Obeysekerapura

The Case of Sunil of Obeysekerapura: Sunil"s abduction and disappearance occurred in the context of the inner party rivalry that occurred at the Colombo Municipal Council Elections 1991. Sunil, a strong UNPer and friend of one 'Malu Nihal' a leader of the local under world-gang, fell out with Malu Nihal as they supported the rival UNP candidates who contested the election. Sunil was abducted by police officers attached to the Bureau of Special Operations. His mother traced him to the office of the BSO.

The Bureau of Special Operations was a special unit of the police established according to its mandate to 'fight narcotism" corruption, smuggling and terrorism", with operational jurisdiction island-wide, which was set up in January 1991 on Presidential direction with DIG Premadasa Udugampola as its Head.

There was no allegation that Sunil was engaged in "narcotics, corruption, smuggling or terrorism" when he was abducted by the B. S. O.

All dissent had come to be equated to "subversion".

The petitioners before the Commission perceived this clearly. They said:

My husband let the SLFP hold the General Election meetings in our compound when others wouldn't. They came in a jeep in the night time and abducted him. My complaint to the Inspector General of Police was referred for inquiry to the same officer, now, Asst. Supdt. of police of the area.

I know the murder of my 18 year old President's Scout son just after his return from an international Scout jamboree was by the Army, at the local politician's behest. The local Army Commandant who ordered, and the local politico who put him up to it, are both equally guilty

When my 3 brothers, one of them the SLFP Branch President and all 3 quite outstanding, were abducted, it wasn't to keep them alive. It was to stifle political discussion.

The then President of the Bar Association of Sri Lanka in his evidence to the Commission brought this out clearly from his analysis of the Lawyers who were abducted or were killed out-right during this period. Lawyers who filed Habeas Corpus applications, who worked with Christian Service Organations in the Free Trade Zone for the welfare of workers, Lawyers who appeared in Trade Union Matters, in legal aid work, met with the same fate. (Emphasis ours -ALRC)

A large number of lawyers who were handling Habeas Corpus and fundamental rights matters were killed by unidentified gun men. C. L. was handling a large number of Habeas Corpus Cases in respect of persons who had been taken into custody arid disappeared. Mr. N. N. of Gampaha had been involved in a large number of Habeas Corpus Cases, but at the date of his killing he was not involved in these. Mr. K. A. who was killed had been involved in a large number of cases in respect of University students who had been taken into custody and could not be traced. He was also active in the Sarvodaya Legal Aid Centre, Mr. S. K. at the time of his death was engaged as a Junior Counsel in a Magistrate Court Case in Theldeniya, where 7 Police Officers of Theldeniya Police were accused on killing a school boy in a demonstration. Prior to the murder of S. K. his clerk and another lawayer's clerk who were eye-witnesses to the shooting of the school boy, had been killed. A delegation of the BASL met H. E. the President of Sri Lanka and requested that the Police and Army personnel should come to an agreement that BASL would be informed with 24 hours of a lawyer being taken into custody. H. E. The President agreed to this. The agreement with the three service Commanders was signed on 21.08.89. On several occasions lawyers were threatened and taken into custody and subsequently released at my intervention. Mr. G K. who was practicing in Gampaha was not involved in Habeas Corpus matters, but he was involved in Trade Union Work for SEDEC, a Catholic welfare organisation in the Katunayake Free Trade Zone. Mr. B. of the Negombo Bar was helping in the work of the Movements for Inter-Racial Justice and equality (MIRJE) a general feature of the abductions of lawyers was the fact that they were carried out by persons in civil coming in un-marked vehicles. This would be followed by my telephoning the Secretary/Defence who would say: I will ring some People and ring you back; thereafter he would phone to say: Your man is safe.

8. An attitude of considering only one's own human rights as 'Rights' had came into existence

The Secretary Movement for Development and Democratic Rights (MDDR) an umbrella organisation of voluntary organisations who work in the field of political, civil socio-economic and cultural rights, stated in evidence:

At the time terrorism came to be used as a political tool in the North, the state's view was that it could be brought under control by slaughter. The resultant State Terrorism could have only restricted operation in the North. But within the Police and Army and even the Govt. the prevalent view was that killing was an essential tool, and machinery to this purpose, to be put to use at any time whatsoever, was set up by the state. This machinery was set up in a frame-work that couldn't be challenged via the courts. The only legal weapon available against abduction and killings was the writ of Habeas Corpus. If the inquests and investigations requisites under ordinary law operated, the law would not have been reduced to this state of helplessness. Emergency Regulation 55 permitted a burial without on inquest EF55's "message" to the Security Forces was that a human body was no more than that of a dog or other animal. All this took place in the context of an attitude of considering only your own Human Rights as "Rights". (Emphasis ours-ALRC) This was reflected among lawyers also. On one occasion our orgnisation proposed that as a principle we should oppose all Murder, by whomsoever. Those who opposed this took up the position that what was necessary was condemnation of killings by state forces and not killings by others. When we showed that this was not only incorrect in principle but was in itself a threat to Human Rights, there were threats to our lives. And as they were in a position to carry them out, these were not idle threats either. (pages 34-42)

"The Minister of State for Defence on the Government's Policies

Finally it is the responsibility of this Commission to place on record the words in Parliament of the Minister of Defence.

A. On 25.01.90 speaking in Parliament in the debate to extend the Emergency, the Minister stated as follows :

I know that there are abuses black sheep in the Police Department and the Forces, but by and large the Services and the Police are highly disciplined and they have done a good job for all of us-not only for us, but for all of us. I am concerned about the abuses and I am personally following up the action that is being taken against the culprits. I have asked for a list of name of persons in the Army, the Navy, the Air Force and the Police who have been accused of murder, extortion, rape, robbery and connivance with the JVP. I will follow up action until they are punished and put in their places. No, matter who they are, no influence will be tolerated.

We are in the process of cleaning up the local Mafia. That is why we want the Emergency Extended for a little more time to finish up all this also. You cannot do these things under the normal law. (Emphasis ours-ALRC) It takes a lot of time. By the time my good friends who are lawyers take time to solve these things the match will be over (Interruption). We have finished the first eleven and the second eleven. Now we are tackling the under fourteen fellows.

1. There is no record of follow-up action against any person in any Army, Navy Etc. in respect of the series of acts that constitute a disappearance.

2. "We have finished the first eleven and the second eleven. Now we are tackling the under 14 fellows" is seen to have an almost literal meaning. Not a single leader of the JVP was brought to trial after the arrest of thirteen out of fourteen Members of the Polit Bureau in the period November-December 1989. None of them are alive." (Page 42)

(l) The issue of impunity:

The entire chapter of the Commission's report on The Issue of Impunity deserves special and careful consideration. It deals with the threat disappearances pose to democracy.

"No circumstance what so ever whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances.i

To the extent that a society or government dismisses the principle of accountability as unnecessary, it under-mines its possibility of becoming a true democracy, in which citizens can feel confident that their rights are firmly protected.ii (page 50)(Emphasis ours- ALRC)

"The Spectacle of Impunity

* The climate of impunity was so tangible as far as the witnesses before this Commission were concerned that many of them did not even trouble to list its features. This Commission discovered that the features ranged from the most spectacular and sensational to the most mundane disregard for the Rule of Law. These features included the sight of scavenging dogs feeding on mutilated bodies left in piles on the road-side.

* the sight of 'tyre-pyres' with bodies set alight on them, (and still more gruesome wearing 'necklace' of a burning tyre leading to the reflection was it a corpse of a living person who had been so garlanded)

* the sight of vehicles moving around with no number-plates of obviously false ones, without check by traffic police of soldiers manning the many road blocks.

* the experience-one's own or of a neighbour, friend of relation-f the violent entry into one's home at any time of the day or night of heavily armed men who forcibly abducted the males-most particularly the youth taking them in as public a manner as possible, never to return.

* the knowledge, common to all, that the attempts of the relatives to inform the police would be unsuccessful; that the complaint if recorded it all would be but of a disappearance only, leaving out all the material particulars disclosed by the complainant.

* the knowledge that not one jot of attention would be paid in official quarters despite the regular newspaper reports that showed opposition MPs raising the matter of disappearances in Parliament, tabling the lists of the disappeared.

* the knowledge, worst of all, shared by the whole community, that there would be no official acknowledgement, not one perpetrator punished, even though these were not the acts of a foreign invader.

This was the picture conjured up again and again in the evidence of petitioners before the Commission from all quarters of the South, West and Sabaragamuwa Provinces, though the rates of incidence varied from place to place. From the homogeneous nature of the evidence before us, Your Commissioners are confident that this will be the picture revealed before all three Commissions appointed by Your Excellency.(Emphasis ours - ALRC) (pages 50-51)

Conclusions:

Conclusion 1

Even the above considerations, which are only a small part of the serious matters raised by the three Sri Lankan Presidential Commissions of Inquiry into the Involuntary Removal or Disappearance of Persons, show an organised attempt on the part of the political leadership of the regime in power at the time to cause the disappearances of tens of thousands of persons through the operations of State officers and those working with them. These thousands of killings were done after arrest or abduction by such persons under a nation-wide network with powers not to keep any records. Most bodies were burnt or disposed of in rivers by the persons working for these agencies. Some of the bodies were exhibited at roadsides. None of these acts can come under legitimate actions of a State in controlling insurgency or engaged in any other lawful activity. All such disappearances caused by such State agents and their collaborators are illegal and violate fundamental norms established by the international conventions. All political decisions to plan, encourage and promote the carrying out of such disappearances, as well as those decisions to protect culprits, are equally illegal.

From this conclusion it follows:

* That the Working Group should not condone any act of causing disappearances and should regard and declare them as illegal;

* That the Working Group should not portray such acts of causing disappearances as legitimate counter-insurgency activities;

* As there is more information of the nature of these disappearances now available from the reports of the three Sri Lankan Presidential Commissions of Inquiry, that the Working Group may take a stronger position regarding these disappearances than in the past; and

* That the Working Group should now, on the basis of the evidence available, treat these disappearances as a crime against humanity.

Conclusion 2

Only a very small number of the perpetrators of these tens of thousands of disappearances have been prosecuted, and most cannot be prosecuted until proper criminal investigations are conducted. As the normal criminal investigators are police themselves, were normal procedure followed, in most cases the perpetrators themselves would be the investigators. Such a procedure would scarcely create confidence on the part of the complainants, who are mostly from among the poorest in rural areas of the country according to the Commissions' reports. The three Commissions were fact-finding commissions and did not have the human and other resources to conduct such a vast number of criminal investigations. Therefore, if justice is to be done, the Sri Lankan government must appoint a criminal investigation authority with power and resources to conduct criminal investigations into these cases.

From this conclusion it follows:

* That the Working Group must state that adequate criminal investigations have not been conducted into these cases; and

* That the Working Group should recommend that the Sri Lankan government appoint an authority with powers and resources to conduct criminal investigations into these cases of disappearances.

Conclusion 3

As far as the payment of compensation to the victims is concerned, there is no indication as to whether adequate compensation has been paid and whether norms set out by the Working Group in the past have been followed.

From this conclusion it follows:

That the Working Group should examine the nature of the compensation already paid and make further recommendations in order to bring such payments into line with the relevant norms.

Submitted by:
Basil FERNANDO
Executive Director
Asian Legal Resource Centre