By Shivanthi Ranasinghe Courtesy Ceylon Today

We do not realize the ‘Sword of Damocles’ we hung over our heads – not just over those in power, as the anecdote originally implies – when we co-sponsored the Geneva Resolution. Geographically we are strategically placed, rich in resources and our workforce is innovative, educated and ingenious when given the opportunity. Yet, the ‘horse hair’ by which the sword is hung is getting increasingly frayed as international pressure on us is mounting to incorporate provisions of international treaties into our local laws, which they themselves dare not pass in their own parliaments.

The Enforced Disappearances Bill, which was to be presented to the Parliament on 21 September, is a case in point. This is the government’s third attempt to have it presented and passed in Parliament. Each time, due to pressures from various quarters, especially the Venerable Sangha, the government backtracked.

DANGER

Among the many pressure groups this time Eliya too held a press conference on 19 September. Venerable Induragare Dhammarathana Thera, Rear Admiral Sarath Weerasekera, President’s Counsel Manohara de Silva and Veteran Journalist C. A. Chandraprema sat as the panel to explain the danger of this beautifully packaged Bill.

The full title of this bill is, International Convention for the Protection of All Persons from Enforced Disappearance (ICPAPED). This title itself is deceptive and false. It clearly states that this is for the protection of all persons from enforced disappearances. Looking at the title only, no one would dispute with it as no one endorses enforced disappearances.

Yet, Article 2 of Part I itself clearly state, “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such a person outside the protection of the law.”

TERRORIST

In plain English this means only those attached to the Government will be subjected. This will not extend to any non-state actor. Thus, the full force of this convention falls on the heads of our Security Forces without ever touching even a hair of a single terrorist, who for 30 odd years violated every possible human and humanitarian rights law.

Article 1 states that no excuse will be entertained; “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”

In this context, Sanja de Silva Jayatilleka’s Govt. has accepted ICJ’s jurisdiction over Sri Lanka is extremely interesting. Its implications must be fully appreciated now that the Sword of Damocles is swaying so dangerously over our heads. She notes the UK’s reasons cited for its inability to cede the Chagos Archipelago to Mauritius, despite its pledged commitment to do so, is because the archipelago is still “required for defense purposes”. Mauritius in its letter to the Human Rights Council has expanded the exact ‘defense’ purpose UK is using Diego Garcia for, which is “as a transit point after September 2001 for rendition of persons to countries where they risked being subjected to torture or ill-treatment”.

Britain is free to do so as it has not ratified this international treaty on Enforced Disappearances. Certainly Sri Lanka will not lean on the UK to ratify it. Though India’s economy today rivals that of Britain, India will not prevail on UK. China is not interested in these kinds of arm twisting techniques; neither is Russia. The West who has made it the white man’s burden to civilize the non-Caucasians will certainly never address it.

Thus British state agents will never be subject to the cruelties of this Bill and could go to other countries to ‘forcefully disappear’ those who they identify as ‘enemy combats’. They recognize them as such so they are not bound by international laws that protect the rights ‘prisoners of war’. They are escaping their own laws by taking their prisoners to offshore detention centers. Practicing thus they keep the average British citizen safe from psychopaths as well as those who challenge their status quo.

It must be stressed that our Sri Lankan Security Forces who overpowered terrorism did so within our own soil. They did not violate the borders or the sovereignty of another country to safeguard us. It must be further emphasized that since annihilating the Liberation Tigers of Tamil Eelam, our Forces had been engaged in peaceful projects like landscaping, farming, tourism, restoration of buildings and so on. Also, as de Silva pointed, with Yahapalanaya, the white van abduction culture has been eradicated.

OMP

He asked if the Constitutional Councils introduced via 19th Amendment made our institutions independent, why do we need a separate Office for Missing Persons (OMP). Does that imply that our Police are not independent or trustworthy?

Both he and Rear Admiral Weerasekera explained that both the OMP and ICPAPED are links of the same chain. Hence, it must be studied together and the two components are just part of a bigger plan.

For eight years our enemies have been levying war crime charges against our forces, pointed PC de Silva without evidence to prove it.

Therefore, they installed the OMP, empowering it to go to any police or military establishment, any time, without prior notice and confiscate any material as evidence. They can record any statement from any person and present it as evidence. In fact, witnesses may present their statement electronically without giving the accused the right to face his accuser, nor the right to cross examine the accusation. This is nothing short of a factory to generate evidence.

Rear Admiral Weerasekera explained that the target is not the perpetrator, but his command hierarchy. Thus, any lower rank soldier can be summoned by the OMP and either threatened, bribed or otherwise coerced to give evidence of a crime. However, it would be his commanding officer that would be held liable for failing to prevent that crime.

The simple truth is, explained the Eliya panel, the first attempt was to import foreign judges and prosecutors to Sri Lanka. When that failed, they moved to the next step, which is to export those who gave leadership to end terrorism to foreign courts.

The most contentious of this is the extradition clause. Chandraprema’s Govt. in attempt to revive PM’s enforced disappearances Bill explains it in detail. The government argues it will not be the case as we are not signatories to the Roman Statue and thus does not come under the jurisdiction of the ICC. However, Article 10 is clear that a foreign government (a member state) can arrest a Sri Lankan who is alleged to have committed enforced disappearances if found in their territories. Once arrested, they may try him according to their own laws, extradite him to another country in accordance with its international obligations, or hand him over for prosecution to an international criminal tribunal whose jurisdiction that member state has recognized. The only recognized international criminal tribunal is the ICC in The Hague.

De Silva explained our current laws allow another country to ask for a Sri Lankan to be extradited. However, if that person can prove that there is a political motivation behind the extradition request, the Sri Lankan government can decline.

However, this Bill has gone to the extent to deny that right to our citizens. Thus, even though it can be proven that Yasmin Sooka’s NGO had a political motivation to charge General Jagath Jayasuriya, this Bill will not heed it.

PM Ranil Wickremesinghe has assured that the Bill is not retroactive. The argument presented is that the Offenses against Aircrafts Act No. 24 of 1982 passed by Parliament were made retroactively for the purpose of prosecuting Sepala Ekanayake for hijacking an Alitalia aircraft.
However, Mohammed Muzammil of the National Freedom Front on 17 September explained that at the time hijacking was not in our statues. When the then government passed ratifying three international conventions the Supreme Court decided the law governing the international convention had been in place before our parliament had passed that law.

EKANAYAKE

The ICPAPED was passed in 1992. Thus its effect will only be applicable to Sri Lankans from 1992, affecting the war heroes alleged to have committed various crimes. Its time frame, he observed, is convenient to those responsible for the enforced disappearances during the second insurgency of the JanathaVimukthi Peramuna (JVP).

Furthermore, in the Ekanayaka case, the hijacking was an offense already committed and in the past. In the case of a person alleged to have disappeared, his status as missing is ongoing until his whereabouts are located or proven to be dead. Thus, the argument of retroactive does not apply at all to an ongoing case. Add to the contention, Chandraprema writes that anyone may report a case of disappearance within three months of becoming aware that such person had disappeared, who may have disappeared even a decade ago.

BIN

As his conclusion, PC de Silva observed it is not those who brought peace to this country who are the criminals, but those divided over political allegiance that passes these bills to be in power. In the question and answer session, the panel was asked what Eliya would do if the worst becomes the reality. The sad truth is, from the assurances PM Wickremesinghe gives it is clear he himself is not familiar with the Bill and appears to be merely repeating assurances given to him by someone else. That means the enemy had infiltrated right into our ranks and is in either position of power or influencing power. We are facing the last line of defense and it is up to the citizens to ensure this Hunt for War Heroes Bill coming in the guise of protection for all of us from enforced disappearances is thrown to the bin and not legitimized as was done with the OMP.

ranasingheshivanthi@gmail.com