ERASING THE EELAM VICTORY Part 12B
Posted on January 19th, 2020

KAMALIKA PIERIS

OFFICE ON MISSING PERSONS (OMP)

The Office on Missing Persons (OMP) Act no 14 of 2016 was passed in Parliament   in August 2016. There were complaints that Parliament had not followed proper procedures in adopting it. That   it was steamrollered through Parliament, in an undemocratic manner, disregarding objections of the Joint Opposition.  It went through all three readings very quickly, taking just 40 minutes altogether. The JVP voted for it. Government claims 2/3 majority for the bill but is unable to state the number of votes, said critics. USA’s Asst Secretary of State Nisha Biswal and the US Ambassador in Colombo hailed the passing of the OMP Bill. 

The objective of the Act is to take all measures necessary for searching and tracing of missing persons,  clarify  circumstances in which such persons went missing,  protect the rights and interests of missing persons  and identify  means of redress.

 Missing Person” is defined as “one whose fate or whereabouts are reasonably believed to be unknown” , in connection with the conflict which took place in the Northern and Eastern Provinces and its aftermath, or is a member of the armed forces or police who is identified as missing in action” or  in connection with political unrest or civil disturbances .

The OMP has the power to receive, from a relative or any other person complaints about missing persons. OMP also had the power to initiate an inquiry into the whereabouts and circumstances of disappearance of a missing person either on a complaint made to OMP or any other Commission of inquiry.

The OMP must set up a Tracing Unit  to trace and search missing persons, how they wnet missing and where they are now.OMP must also have a Victim and Witness Protection Division that can protect victims, witnesses and relatives of missing persons.

When authorized by the OMP, an officer of the OMP can enter without warrant, at any time, any place of detention, police station, prison or any other place in which any person is suspected to be detained, and make inquiries to find out the conditions of detention. They can take away any document or object. The public cannot obstruct, resist or threaten OMP officers, or any persons who are assisting the OMP. They must not try to influence OMP officers either.

OMP can compel any person in Sri Lanka to appear before the OMP to provide a statement or produce any document or other thing in his possession. They cannot refuse to come or refuse to answer questions. They must obey any orders made by OMP and must produce documents when OMP asks for them.  Failure to do so will go as contempt of OMP. When that occurs, the OMP will report the matter to the Court of Appeal and the Court of Appeal will treat it as thought it was contempt committed against the Court of Appeal.

OMP can accept confidential information or information in camera. The provisions of the Right to Information Act, No. 12 of 2016, will not apply to such confidential information. No order, decision, act or omission of OMP or its staff can be questioned in any proceedings or any court of law, except under Article 126 or 140 of the Constitution. No proceedings civil or criminal can be instituted against any member of the OMP or any officer or servant appointed to assist the OMP, other than for contempt against the authority of the OMP.

The Act permits OMP to ignore the provisions of the Evidence Ordinance. OMP can   accept any statement or material, written or oral, which might be inadmissible in civil or criminal proceedings. This clause carries other implications.

 Palitha Senanayake observed that certain categories of evidence, which would help support war crimes allegations, could   be entertained, by the OMP using this clause. That will be evidence which is not accepted under   the law of evidence. Evidence concocted by the likes of Channel 4, as well as Tamil Separatist propaganda could also be accepted by the OMP, as evidence against the Sri Lanka forces.

Sarath Weerasekera   adding to this said that the two Acts, Office of Missing Persons Act and Enforced Disappearance International Convention Act would help to collect false evidence against war heroes and subject them to foreign judicial powers and to ICC jurisdiction.

Chandraprema made a series of observations on the Act. This office will be outside the state justice system, he noted.  The OMP can received foreign funding directly, can enter into agreements with foreign organization, they can receive complaints from just anybody. All government bodies, including military have to give fullest cooperation to OMP.

OMP can authorize special officers who can be foreigners to enter without warrant, and investigate any time of the day any police office, prison, military installations and can seize documents .If a missing persons is found, if he so wishes he can remain missing, as unless he agrees, this relative will not be informed, concluded Chandraprema.

The seven members of the OMP are to be appointed by the Constitutional Council. This Council is dominated by western funded NGOs, observed Manohara de Silva. Further, the members of the OMP must be persons with previous experience in fact finding or investigation, human rights law, international humanitarian law and investigative skills. This means that all the appointments will be persons from foreign funded NGOs, added Manohara.

The Office was established 15 September 2017, and operations commenced in February 2018. The OMP had a budget of Rs 1.3 Billion in 2018. OMP annual report for the year 2018  said that it had received 14,641 complaints from National Integration and Reconciliation Ministry, plus an additional 129 new complaints through letters, telephone calls, visits to the OMP Head Office, public meetings and through direct meetings with families of the missing and disappeared.

Complaints about missing persons had started long before. In 2001 Amnesty International published accounts of missing. A woman in Ariyala, Jaffna said   army personnel came and arrested her son who subsequently disappeared. There were witnesses’ to the arrest. In Madhu a woman said her husband had been abducted from their home by a man who she is told had worked for the CID. Several said that they suspected that the navy personnel manning local checkpoints were responsible for the disappearances. One man had disappeared on his way home from a beer bar at a junction where navy were checking IDs. 

From 2017 onwards there were organized protests over missing persons. There was a sit down protest for over 200 days in Kilinochchi in 2017. Most of them were women, reported the media.  All had lost their loved ones in the final days of the war in 2009. On the 100th day these women called a massive demonstration and hundreds of people took to the streets and blocked the A-9 in Kilinochchi.

They sit when it rains, and they sit when the hot wind off the A-9 highway blows sand into their makeshift tent. They’ve been sitting for over 200 days now in Kilinochchi, protesting the loss of their family members. They are mostly women, and they say they have one thing in common: they all lost their loved ones in the final days of the war in 2009, reported the media in 2017.

They want to know if their sons, daughters, parents, husbands and in-laws are dead, or if they’re alive somewhere, in a prison or detention camp. Many believe that their loved ones are still alive somewhere, and if they were released, they could come home and help take care of their shattered families.

Some of the missing are LTTE who surrendered after the Army’s final offensive .But others were just civilians, picked up in camps for internally-displaced persons or loaded on to buses and never seen again.

Thangavelu Sathiyathevy recalled the last time she saw her family. She said she remembers the day exactly. This was May 18, 2009. We were in Vadduvakallu, and there were buses taking people away,” she said. Thousands of displaced people had gathered on the beaches there, seeking safety from the fighting. Vaddavakallu was technically in a no-fire zone. My daughter, son-in-law, and their three children were taken into the bus. He was an LTTE member,” she said, we also asked to join with them. But they said no, you can go separately.”Sathiyathevy said she was taken to Manik Farm, an IDP camp near Vavuniya. But she has never seen or heard from her family again. The children were 2, 9, and 10 years old.

Sivayogam Ratnaraja said she and her family was also taken to an IDP camp in Vavuniya after the war. In June, her son Ratnam Ratnaraja came to visit them from the University of Moratuwa, where he was studying engineering. But after he left the camp, he was arrested by local police. Ratnaraja said she was never given a reason for his arrest. But she has a suspicion. Her elder son, Ratnam’s older brother, was an LTTE cadre and died during the fighting. The Police or an informant might have known this. Six months later, Ratnaraja said one of her neighbors, met with and spoke with her son at Anuradhapura prison. But she has not heard from him thereafter.

Jeyakanthi Narmila’s husband from Thilaiyampathi in Kondavil, Jaffna, disappeared on August 17, 2007. She alleged that he was taken away by the Army in a white van. Some Army soldiers reached my home in a white van, it was around 3.30 am. He has not returned since. I haven’t heard anything about him. I made complaints about the abduction of my husband to the Uralu Army Camp and the Kopai Police,” she said.

Six months after the disappearance, she had seen her husband on a motorcycle pillion, ridden by an Army soldier. Three years later, she saw her husband once again, in an army truck. On that day, a piece of cloth was tied round his mouth. Thereafter, I never saw my husband again.

In 2018 media reported that families of the disappeared were protesting across Vavuniya, Kilinochchi and Mullaitivu, demanding to know the whereabouts of their loved ones. Relatives of those missing still continue with their public protests even as their numbers get less due to the vicissitudes of time and age, said Jehan Perera. The fate of the missing persons is an emblematic issue to the northern people. The numbers who went missing was large, one of the largest in the world at that time, and memories of those beloved do not fade for those who living, he said.

.In 2019 Mannar residents protested opposite Mannar GA office demanding that government locate those reported missing during the war. Families of those missing during Eelam war IV also gathered in Colombo, Jaffna and Batticaloa. In Colombo they protested in silence at Lipton Circus. Lovers who have been deprived due to enforced disappearance during armed conflict, commemorated ‘Missing lovers Day’ opposite Dutch Hospital in Colombo.

A series of demonstrations and protest marches were organized in the North, in 2019 to mark the ‘International Day of the Victims of Enforced Disappearances’. The Association of Missing Persons Relatives” and other organizations had organized demonstrations and protest marches in every district in the Northern Province. They wanted the Government to trace their loved ones and to mete out justice to their families.  They said they didn’t want an Office on Missing People, they needed relief.

One protest march was to wish for the destruction of the United Nations, which, they said, was not doing enough for those who had disappeared during the war. The protestors said that they had complained to the UNHRC on a number of occasions but their complaints had gone unheeded.”Therefore we curse them. We hope that the UNHRC will face destruction,” a protester said. After wishing ill on the UN, the protesters marched across Vavuniya.

The hope that the establishment of an Office of Missing Persons would bring a solution has ebbed as no one who disappeared has yet been said Jehan Perera. In 2019, a group of people protested opposite the Office of Missing Persons Office, demanding that it be closed as it had served no purpose. The protesters also called for a proper compensation scheme as Rs. 6,000 promised to families of the missing persons was insufficient. They also said that the government did not need to obtain information on missing persons afresh.

However, OMP was not inactive. In 2018, in is interim report, OMP spoke of the economic hardships faced by families of the disappeared and missing. The importance of providing interim relief until compensation and other forms of reparation are provided to address their complex needs and acknowledge the harms suffered.

MP had recommended that the government provide Rs.6,000 monthly relief to families of mission persons  as interim relief  for those who have obtained Certificate of Absence, unit the Office for Reparations resolves their claims. OMP stated that this must not be regarded waiver of the right to adequate, prompt and effective reparations and to seek judicial remedies.

To the great joy of the OMP, Yahapalana government  included  the Rs 6,000 payment  in its 2019 Budget. However, OMP observed that the linking of the monthly relief to the possession of a Certificate of Absence (COA) poses a challenge. The OMP has a legal responsibility to facilitate the provision of COAs and is in the process of devising methods to increase awareness and assist families to apply for COAs.

The OMP made a number of other recommendations relating to interim relief including debt relief, housing, education, vocational training and livelihood development and employment. One such recommendation is that the families of the missing and disappeared be included in financial aid programmes and loan schemes such as ‘Enterprise Sri Lanka’ to help families achieve economic independence . The families are required to join the livelihood programmes coordinated by the Office for National Unity and Reconciliation (ONUR).

MANNAR SKELETONS 

In May  2018, a mass grave of more than 300 skeletons were discovered at a construction site in Mannar. It was the second mass grave found in Mannar. The first was found in 2014.

The German Ambassador in Colombo accompanied by a large group of foreign and local journalists, was one of the first diplomats to inspect the site on. A British team came next. There was speculation whether these bodies had been tortured. Office on Missing Persons  funded tests, to determine whether the victims were killed during the Eelam conflict.

However, Beta Analytic Institute of Florida, USA, said that the samples of skeletal remains sent from the Mannar mass grave site for carbon dating, were dated to  a period between 1499 and 1719 AD. This was the time of Portuguese-Dutch rule . The National Peace Council, Center for Policy Alternatives and TNA called for a second opinion.” TNA  wanted the bones to be tested in a different country.

‘ENFORCED DISAPPEARANCES’

Yahapalana government signed and ratified the ‘International Convention for the Protection of All Persons from Enforced Disappearances’ in December 2016.

Article 10 of this Convention makes it clear that any State in whose territory a person (who can be a citizen of any other member state) suspected of having committed an offence of enforced disappearance is present, can take that person into custody, said Chandraprema.

According to Article 11, after making an arrest in that manner, the member state concerned can take one of three alternative courses of action – (a) extradite that person to another country in accordance with its international obligations, (b) prosecute that person under its own laws or (c) hand him over for prosecution to an international criminal tribunal whose jurisdiction that member state has recognized.

These two Articles of the International Convention Against Disappearances read together gives a clear picture of the action that any member state of this Convention can take against one of its own citizens or the citizen of any other member state who may be present in its territory, continued Chandraprema.

Article 13 of the international convention also states that any member state may request the extradition of a person suspected of being responsible for enforced disappearances in any other member state and all member states are supposed to respect such requests for extradition.

 Because Sri Lanka is now a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance, the provisions of Articles 10, 11 and 13 form a part of our obligations under this Convention.

Clause 8 says that where a request is made to the Government of Sri Lanka, by the Government of a Convention State for the extradition of any person accused or convicted of causing an enforced disappearance, the Minister shall, on behalf of the Government of Sri Lanka, forthwith notify the Government of the requesting State of the measures which the Government of Sri Lanka has taken, or proposes to take, for the prosecution or extradition of that person for that offence, continued Chandraprema.

When you read Articles 10, 11 and 13 of the International Convention Against Enforced Disappearances together with Clauses 8 and 21 of the Bill that had been presented to Parliament to give effect to that convention in Sri Lanka, it is clear that once the Convention becomes operational in Sri Lanka, foreign countries which are members of the International Convention will have complete jurisdiction over Sri Lankans who are alleged to have been involved in causing enforced disappearances in Sri Lanka.

Even if a person believed by foreign states to have been involved in enforced disappearances in Sri Lanka happens to be in Sri Lanka, any interested foreign government can request the Sri Lankan government to extradite that person to their country to be prosecuted or handed over to an international criminal tribunal to be prosecuted.

 By signing and ratifying the International Convention against Enforced Disappearances Sri Lanka has accepted that its citizens can be handed over to an international criminal tribunal for prosecution under Article 11. Nobody will be able to argue that the ICC does not have the jurisdiction to prosecute a Sri Lankan handed to them by a third country because Sri Lanka has granted authority to all member states of the International Convention against Enforced Disappearances to take action against Sri Lankans for offences under this Convention and one of the actions specifically sanctioned is the handing over of suspects to an international criminal tribunal.

Chandraprema pointed out that the United States, Britain, Australia and Canada, had not signed this Convention. USA has a clear policy that no foreign government is going to try an American soldier. Scandinavian countries which are usually at the forefront of any human rights initiative had signed it in 2007, but never ratified it. India had also signed it ten years ago, she too had never ratified it. But Yahapalana had had signed and ratified this convention within a few months .

Yahapalana then moved on to the next step which was a Bill to incorporate into the law of Sri Lanka, the provisions of the ‘International Convention for the Protection of All Persons from Enforced Disappearances’.

There was opposition. This Bill seeks to enable foreign countries to request the extradition of a Sri Lankan who is suspected, accused or convicted of having caused enforced disappearances in Sri Lanka. Under this law foreign countries would also be authorized to arrest and try Sri Lankans for disappearances that allegedly took place in Sri Lanka and even to hand over persons so arrested to an international criminal tribunal even if Sri Lanka does not come under the jurisdiction of that international tribunal, said Chandraprema.

G.L.Peiris  observed that this Bill was probably not even drafted here but sent from overseas. earlier the controversy was about whether foreign judges should be allowed to serve in a war crimes tribunal in Sri Lanka but that now the government seems to have changed their strategy and instead of bringing foreign judges here, they are trying through this proposed legislation to send our armed forces personnel overseas to be tried by interested foreign governments, he said.

He pointed out that this proposed legislation seeks to circumvent the safeguards in Sri Lanka’s Extradition Law No 8 of 1977. One of those protections was that no person can be extradited for an offence of a political nature. That protection which is even enshrined in customary international law, is specifically taken away and furthermore, that through this proposed Bill, it becomes possible to send Sri Lankans to the Hague through a foreign country.

He said that Clause 23 of the proposed Bill enables the proposed law to supersede all other written laws in Sri Lanka giving it a status akin to the constitution. Joint Opposition said it does not want the debate on this Bill. They want it withdrawn altogether.

Yahapalana  government took no notice. Sri Lanka enacted the International Convention for the Protection of All Persons from Enforced Disappearance Act in March 2018. Here are  two clauses in this Act.

Where a request is made to the Government of Sri Lanka, by or on behalf of the Government of a Convention State for the extradition of any person accused or convicted of an offence under sections 3 or 4, the Minister shall, on behalf of the Government of Sri Lanka, forthwith notify the Government of the requesting State of the measures which the Government of Sri Lanka has taken, or proposes to take, for the prosecution or extradition of that person for that offence.”

Notwithstanding anything in the Extradition Law, No. 8 of 1977, an offence specified in the Schedule to that Law or an offence under this Act, shall  not be deemed an offence of a political character for the purposes of the extradition of any person accused or convicted of any such offence, as between the Government of Sri Lanka and any Convention State.

OFFICE FOR REPARATIONS

Yahapalana government passed the Office for Reparations Act, No. 34 of 2018. Yahapalana appointed  the Board in April 2019.Dhara Wijayatilake, Chairperson, J. M. Swaminathan, Sellathamby Sumithra, A.A.M. Fathihu, Lt. Colonel (Retired) Rathnapriya Bandu . Yahapalana government allocated Rs. 700 million for the Office for Reparations.

Office for Reparations is the second step of the transitional justice mechanisms for reconciliation process formulated locally and implemented by the Government of Sri Lanka, said Yahapalana .It is the responsibility of the Office for Reparation to identify the aggrieved victims qualified for reparation and provide appropriate compensation individually or collectively to them, reported the media.

The Office for Reparations is an independent body reporting to the Parliament of Sri Lanka.

 The Office is tasked to identify the aggrieved persons, who are eligible for reparations as well as their level of need, and to formulate and recommend policies on Reparations and guidelines with regard to the grant of individual and collective reparations, including the criteria for eligibility, and the nature and severity of grievances for which reparations will be available. 

The objectives of this Office would include formulating policies on reparation to grant individual and collective reparations to aggrieved persons. Also to facilitate and implement such Policies, which could include memorialization.

The Office for Reparations   had the power to receive recommendations with regard to reparations to be made to aggrieved persons from OMP, other relevant bodies, institutions,   as well as aggrieved persons or their representatives and to verify the authenticity of such applications, for the purpose of assessing the eligibility for reparations also to consider non-monetary reparations and collective reparation. The Office was also to take action on collective reparations such as memorials and measures of restitution, including the provision of land and housing.

The    Office for Reparation was to focus primarily on those affected by Eelam war, or enforced disappearances as defined in the International Convention for the Protection of all Persons from Enforced Disappearance Act, No. 5 of 2018.

The idea of reparation had been floated long  before the Act was passed. In 2016 ‘Fairplay’ had written to the papers saying that the government should pay compensation to Tiger widows.  Then  In  2018, MP Swaminathan wanted enhanced compensation” paid to Tiger guerrilla ex-combatants who were defeated in the separatist war that ended in 2009 and their next of kin.

Swaminathan  made use of an LLRC recommendation that said ex combatants and next of kin should also be considered eligible for compensatory relief. Compensatory relief  should be given for the deaths and injuries of those who were involved in suspected terrorist activities and their next of kin, said LLRC. Government wants to pay enhanced” compensation to those who took to arms to create a separate homeland” in Sri Lanka, observed  contemptuous critics.

Swaminathan had submitted this proposal to Cabinet thrice. The Cabinet Paper had been deferred in the first two instances, but on the third occasions, due to continued protests from Ministers, was stopped for good, reported the media. The paper had also proposed to compensate civilians, places of religious worship and the families of dead LTTE cadres as persons affected by the war. ( Continued)

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