{"id":116428,"date":"2021-07-23T16:09:42","date_gmt":"2021-07-23T23:09:42","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=116428"},"modified":"2021-07-25T15:12:18","modified_gmt":"2021-07-25T22:12:18","slug":"erasing-the-eelam-victory-part-20-c13","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2021\/07\/23\/erasing-the-eelam-victory-part-20-c13\/","title":{"rendered":"ERASING THE EELAM VICTORY Part 20 C13"},"content":{"rendered":"

KAMALIKA PIERIS<\/em><\/span><\/h2>\n\n\n

\u00a0(continued from C12)<\/p>\n\n\n\n

UN CONVENTION ON ENFORCED DISAPPEARANCES (2018)<\/strong><\/p>\n\n\n\n

Sri Lanka signed the UN International Convention for the\nProtection of all Persons from Enforced Disappearances (ICPPED) in December 2015\nand in March 2018 passed a Bill to incorporate its provisions into Sri Lanka\nlaw. The Bill was passed, without amendments, amidst disturbances from the\nJoint Opposition. <\/p>\n\n\n\n

The bill was withdrawn twice by the government, due to protests from the Maha Sangha and the Joint Opposition.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, \u00a0\u00a0such as abduction, illegal confinement, murder and the illegal disposal of dead bodies\u00a0 are adequately covered by the Penal Code and the existing criminal law in Sri Lanka.\u00a0 <\/p>\n\n\n\n

Many countries have kept away from this Convention altogether,\nbecause of its intrusive nature, observed critics,  Australia, Britain, Canada, China, Russia\nand Pakistan and United States have not signed this Convention. Denmark, Finland,\nIreland, India, Norway and Sweden signed but never ratified it.  Sri Lanka was therefore signing a convention\nwhich other countries, including  countries\nwhich  sponsored resolutions against us\nin the UNHRC, had refused to sign, observed  critics. <\/p>\n\n\n\n

In Sri Lanka however,   ambassadors\nof several EU nations had been present at the meeting held in December 2016, to\nfinalize the new Bill. Ambassadors of France, European Union, Netherlands,\nGermany, Italy, Romania and the British High Commissioner had been present. <\/p>\n\n\n\n

Critics point\nout that the proposed law is an attempt to subject our armed forces to an\ninternational court by rephrasing \u2018war crimes\u2019 as \u2018disappearances\u2019. The use of\nthe word \u2018disappearances\u2019 makes this look like an attempt to trace missing\npersons. But the purpose of this Bill is not to trace missing persons but to\nhunt down and prosecute those who won the war. Any state which has signed this Convention\ncan get a Sri Lankan extradited to their country and try him in court. <\/p>\n\n\n\n

 The only \u2018disappeared\u2019 persons, whose cases will be dealt\nwith under this proposed law, will be those of the LTTE. LTTE\ncombatants who have either died in battle or fled overseas continue to be\nlabeled as having \u2018disappeared\u2019. The armed forces have already categorized the\nthousands of soldiers who disappeared as \u2018assumed to be dead\u2019. <\/p>\n\n\n\n

Article 2 of the Convention makes it applicable only to State\nActors which means that this is aimed only at the armed forces and terrorist\nmovements like the LTTE are expressly excluded. No action will be taken by any\nforeign country against LTTE, because ICPPED does not have any provision to\ninclude non-State actors within its ambit. Not only are Non-state actors, like\nthe LTTE expressly excluded from this legislation, they are protected as well.\nThis Bill is designed to protect future terrorists said critics.<\/p>\n\n\n\n

Under Article\n10 of the ICPPED any person suspected of causing enforced disappearances can be\narrested in the home state or any other member state, regardless of whether\nthere is an extradition treaty or not. <\/p>\n\n\n\n

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

Articles 10, 11 and 13 of the Convention read together with\nClauses 8 and 21 of the  Sri Lanka Act\nmeans that foreign countries which are members of the International Convention\nwill have complete jurisdiction over Sri Lankans who are alleged to have been\ninvolved in causing enforced disappearances in Sri Lanka.<\/p>\n\n\n\n

Clauses 20(1) & (2) of this Bill read together with Clause 14\nconfirms that  this law will have\nretrospective effect, which means it can be used for the Eelam war. Within\nthree months of a person becoming aware that he has still not received news of\nwhat happened to someone 10 or even 20 years ago, that person can make an\napplication to the High Court under Clause 20, asking for relief.<\/p>\n\n\n\n

To charge a\nperson abroad, it is necessary to extradite him, and for this, laws are\nnecessary.  Sri Lanka has its Extradition Act No.\n8 of 1977. Therefore Clause 23of the Enforced Disappearance Act   says\nthe provisions of this Act shall have effect notwithstanding anything to the\ncontrary in any other written law and accordingly in the event of any\ninconsistency or conflict between the provisions of this Act and such other\nwritten law, the provisions of this Act shall prevail.” <\/p>\n\n\n\n

This means\nthis Act will override all other written law  and the Extradition Act No. 8 of 1977 becomes\nineffective.  The right of a Sri Lankan\nto move court against extradition is\ntaken away. The safeguards,\nafforded to Sri Lankans, in case foreign governments sought their extradition\nare now removed.<\/p>\n\n\n\n

Article 32 of the Convention (which the Sri Lankan government has\naccepted by a separate declaration) enables any member State to complain to the\n10-member \u2018Committee on Enforced Disappearances\u2019 in Geneva that Sri Lanka is\nnot fulfilling her obligations under this Convention and the Committee can\ninvestigate such complaints. <\/p>\n\n\n\n

This means\nthat foreign countries which are members of the ICPPED will have complete\njurisdiction over Sri Lankans who are alleged to have carried out enforced\ndisappearances in Sri Lanka. This Bill gives foreign countries complete and\nuntrammeled criminal jurisdiction over Sri Lankans in relation to the offence\nof \u2018enforced disappearances\u2019. <\/p>\n\n\n\n

Critics observed that anyone can be extradited to another state on\na mere accusation. Such accusations could originate in Sri Lanka or elsewhere. The\nBill has no provision for any formal procedures  that should be followed within Sri Lanka or\noutside, not even a preliminary investigation, except for what the Minister in\ncharge of the subject decides. The lack of any formal procedures to establish\nthe credibility of the accusation prior to extradition presents ample\nopportunities for victimization. <\/p>\n\n\n\n

Ladduwahetty saw many weaknesses in the\nBill. This Bill   contains\narticles that contradict each other, he said. Also\nprovisions in the Bill violate the Constitution of Sri Lanka. The Constitution\npermits arresting and locking up people  \nduring an emergency, but the Bill does not.  Constitution does not permit retrospective\nlegislation.  The Bill is   retrospective. since the Bill contradicts\nthe Constitution of Sri Lanka, either the Bill has to be revised, or the\nConstitution has to be amended.  <\/p>\n\n\n\n

Since provisions\nin the ICPPED also violate provisions in the Constitution of Sri Lanka, the\nGovernment should be asked explain why it signed the UN Convention on\nDisappearances. Further under\nprovisions of Article 33 (f) the President does not have the authority to sign\nand ratify this UN Convention, concluded Ladduwahetty. <\/p>\n\n\n\n

People confuse the Bill on the Office of Missing Persons with the\nBill on Enforced Disappearances. The OMP Act is nowhere near as dangerous as\nthe Enforced Disappearance Act. The OMP Act is only a very specific instance of\na “missing person”. A person could be “missing” for a\nvariety of reasons, but an “enforced disappearance” is carried out by\nagents of the State. It is on account of this very difference that there are 2\nseparate Acts. (continued in C14)<\/p>\n","protected":false},"excerpt":{"rendered":"

KAMALIKA PIERIS \u00a0(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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[104],"tags":[],"class_list":["post-116428","post","type-post","status-publish","format-standard","hentry","category-kamalika-pieris"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/116428","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=116428"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/116428\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=116428"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=116428"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=116428"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}