ERASING THE EELAM VICTORY Part 20 C13
Posted on July 23rd, 2021

KAMALIKA PIERIS

 (continued from C12)

UN CONVENTION ON ENFORCED DISAPPEARANCES (2018)

Sri Lanka signed the UN International Convention for the Protection of all Persons from Enforced Disappearances (ICPPED) in December 2015 and in March 2018 passed a Bill to incorporate its provisions into Sri Lanka law. The Bill was passed, without amendments, amidst disturbances from the Joint Opposition.

The bill was withdrawn twice by the government, due to protests from the Maha Sangha and the Joint Opposition. They observed that all matters that relate to an enforced disappearance,   such as abduction, illegal confinement, murder and the illegal disposal of dead bodies  are adequately covered by the Penal Code and the existing criminal law in Sri Lanka. 

Many countries have kept away from this Convention altogether, because of its intrusive nature, observed critics,  Australia, Britain, Canada, China, Russia and Pakistan and United States have not signed this Convention. Denmark, Finland, Ireland, India, Norway and Sweden signed but never ratified it.  Sri Lanka was therefore signing a convention which other countries, including  countries which  sponsored resolutions against us in the UNHRC, had refused to sign, observed  critics.

In Sri Lanka however,   ambassadors of several EU nations had been present at the meeting held in December 2016, to finalize the new Bill. Ambassadors of France, European Union, Netherlands, Germany, Italy, Romania and the British High Commissioner had been present.

Critics point out that the proposed law is an attempt to subject our armed forces to an international court by rephrasing ‘war crimes’ as ‘disappearances’. The use of the word ‘disappearances’ makes this look like an attempt to trace missing persons. But the purpose of this Bill is not to trace missing persons but to hunt down and prosecute those who won the war. Any state which has signed this Convention can get a Sri Lankan extradited to their country and try him in court.

 The only ‘disappeared’ persons, whose cases will be dealt with under this proposed law, will be those of the LTTE. LTTE combatants who have either died in battle or fled overseas continue to be labeled as having ‘disappeared’. The armed forces have already categorized the thousands of soldiers who disappeared as ‘assumed to be dead’.

Article 2 of the Convention makes it applicable only to State Actors which means that this is aimed only at the armed forces and terrorist movements like the LTTE are expressly excluded. No action will be taken by any foreign country against LTTE, because ICPPED does not have any provision to include non-State actors within its ambit. Not only are Non-state actors, like the LTTE expressly excluded from this legislation, they are protected as well. This Bill is designed to protect future terrorists said critics.

Under Article 10 of the ICPPED any person suspected of causing enforced disappearances can be arrested in the home state or any other member state, regardless of whether there is an extradition treaty or not.

After the arrest, the individual concerned can under Article 11 be a) prosecuted in that country b) extradited to another country) or handed over to an international criminal tribunal.  if that foreign country happens to be a member of the International Criminal Court, then the person charged can be handed over to the ICC. This means that now no one can say that Sri Lanka cannot be handed over to the ICC simply because it has not signed the Rome Statute.

Articles 10, 11 and 13 of the Convention read together with Clauses 8 and 21 of the  Sri Lanka Act means that 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.

Clauses 20(1) & (2) of this Bill read together with Clause 14 confirms that  this law will have retrospective effect, which means it can be used for the Eelam war. Within three months of a person becoming aware that he has still not received news of what happened to someone 10 or even 20 years ago, that person can make an application to the High Court under Clause 20, asking for relief.

To charge a person abroad, it is necessary to extradite him, and for this, laws are necessary.  Sri Lanka has its Extradition Act No. 8 of 1977. Therefore Clause 23of the Enforced Disappearance Act   says the provisions of this Act shall have effect notwithstanding anything to the contrary in any other written law and accordingly in the event of any inconsistency or conflict between the provisions of this Act and such other written law, the provisions of this Act shall prevail.” 

This means this Act will override all other written law  and the Extradition Act No. 8 of 1977 becomes ineffective.  The right of a Sri Lankan to move court against extradition is taken away. The safeguards, afforded to Sri Lankans, in case foreign governments sought their extradition are now removed.

Article 32 of the Convention (which the Sri Lankan government has accepted by a separate declaration) enables any member State to complain to the 10-member ‘Committee on Enforced Disappearances’ in Geneva that Sri Lanka is not fulfilling her obligations under this Convention and the Committee can investigate such complaints.

This means that foreign countries which are members of the ICPPED will have complete jurisdiction over Sri Lankans who are alleged to have carried out enforced disappearances in Sri Lanka. This Bill gives foreign countries complete and untrammeled criminal jurisdiction over Sri Lankans in relation to the offence of ‘enforced disappearances’.

Critics observed that anyone can be extradited to another state on a mere accusation. Such accusations could originate in Sri Lanka or elsewhere. The Bill has no provision for any formal procedures  that should be followed within Sri Lanka or outside, not even a preliminary investigation, except for what the Minister in charge of the subject decides. The lack of any formal procedures to establish the credibility of the accusation prior to extradition presents ample opportunities for victimization.

Ladduwahetty saw many weaknesses in the Bill. This Bill   contains articles that contradict each other, he said. Also provisions in the Bill violate the Constitution of Sri Lanka. The Constitution permits arresting and locking up people   during an emergency, but the Bill does not.  Constitution does not permit retrospective legislation.  The Bill is   retrospective. since the Bill contradicts the Constitution of Sri Lanka, either the Bill has to be revised, or the Constitution has to be amended.  

Since provisions in the ICPPED also violate provisions in the Constitution of Sri Lanka, the Government should be asked explain why it signed the UN Convention on Disappearances. Further under provisions of Article 33 (f) the President does not have the authority to sign and ratify this UN Convention, concluded Ladduwahetty.

People confuse the Bill on the Office of Missing Persons with the Bill on Enforced Disappearances. The OMP Act is nowhere near as dangerous as the Enforced Disappearance Act. The OMP Act is only a very specific instance of a “missing person”. A person could be “missing” for a variety of reasons, but an “enforced disappearance” is carried out by agents of the State. It is on account of this very difference that there are 2 separate Acts. (continued in C14)

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