Justice in Sri Lanka: With just 273 political prisoners in custody, how many have disappeared?
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Justice in Sri Lanka: With just 273 political prisoners in custody, how many have disappeared?

New questions about wartime and post-war disappearances in Sri Lanka emerged following a bombshell revelation that the Government hs only 273 political detainees in its custody. Families of the disappeared believed the numbers are much higher. This announcement also hardens doubts if a Sri Lankan-led judicial process into mass atrocities, such as disappearances, will bring justice to the victims.

Sri Lanka’s civil war between the numerically larger Sinhalese and smaller Tamils came to an end when government forces crushed Tamil rebels – the Liberation Tigers of Tamil Eelam (LTTE) – in May 2009. The war’s 30-year history was fraught with atrocities, including disappearances, and the torture and rape of political prisoners. In the final few months alone, at least 40,000 people – mostly Tamil civilians – were killed, with both the government and rebels accused of committing war crimes and crimes against humanity.

Throughout the conflict and after, the issue of arrests under security laws such as the Prevention of Terrorism Act (PTA) and disappearances were conflated. Some of those abducted were said to have been arrested and many of those taken into custody by the state later disappeared. Hence the government’s announcement of 273 is important.

Details of the 273 political detainees in government custody emerged in The Island newspaper on June 8, in which Minister of Justice Wijedasa Rajapakshe said: “Fifty four persons who had been convicted on terrorism charges were serving prison terms; indictments were being prepared against 85 persons; cases were pending against 134 persons; eight given bail and 45 convicts released through courts after rehabilitation.”

He continued “[T]housands of LTTE cadres as well as those who had been apprehended during the conflict and in the immediate aftermath … had either been rehabilitated and set free or released through courts.”

Rajapakshe’s words “apprehended during the conflict and in the immediate aftermath” refer to two different contexts / environments where both LTTE cadres and Tamil civilians were detained by Sri Lankan authorities. The first group were those arrested at various times during the 30 years of armed hostilities for alleged acts of terrorism, or aiding and abetting it under the PTA. The PTA has the power to detain people without charges for long periods purely on suspicion.

Those apprehended in the “immediate aftermath” refers to Tamils civilians and LTTE cadre who were detained after moving into government-controlled territory in May 2009. As armed hostilities were coming to an end, an entire mass of the population – almost all Tamil – who were living in areas controlled by LTTE rebels, were taken into the custody of the Sri Lanka government. Those who the government deemed as LTTE cadre were then sent to what the Government called “rehabilitation” and the rest were corralled into camps for the internally displaced (IDPs), numbering 300,000.

There are countless testimonies of people who were present when their loved ones were taken into custody but who have gone missing now. One of them is Northern Provincial Council (NPC) member Ananthy Sasitharan whose husband Elilan, an LTTE commander, has not been heard of since.

There are also instances where those who were in the custody of the Government but have now disappeared were photographed alive in rehabilitation camps or elsewhere. For example Jeyakumari Balendran says she believes her son is alive because she saw a photo of him in a rehabilitation camp published in a government booklet, and the Selvanayagam family says his picture appeared in an election propaganda leaflet.

Finally, Minister Rajapakshe’s announcement glosses over people who continued to be arrested and sent for ‘rehabilitation’ by the Government using the PTA although there was “inadequate or no evidence” to frame charges till at least January this year.

The haphazard arrests, detentions, killings, disappearances and the impunity that prevailed during the former President Mahinda Rajapakse’s (no relation to the justice minister) government led families of the disappeared to live in ignorance as to whether their loved ones were dead or held incommunicado in Government custody.

The presidential election of January 8 saw the defeat of Mahinda Rajapakse. Maithripala Sirisena was elected president instead, supported by a coalition of parties from the opposition. Among them was the Tamil National Alliance (TNA), the largest Tamil party in parliament, which also forms the government in the Northern Provincial Council.

The TNA, as a coalition partner that elevated the new Government to office, claimed it would negotiate the release of these detainees with Sirisena as a matter of immediate importance. However, confusion with the numbers and the definition of those in Government custody is causing difficulties. In an interview to the Ceylon Daily News TNA parliamentarian, M. A. Sumanthiran says there are approximately 300 Tamil political detainees. But in this statement he refers to those arrested under anti-terrorism laws and known to be in a prison. His definition makes a difference between political prisoners and “rehabilitees.”

On February 20, Sumanthiran’s colleague, TNA Parliamentarian Suresh Premachandran told the Colombo Mirror that the Government was running secret detention centres or black sites where 700 Tamil detainees were incarcerated. An independent media organisation also affirmed the existence of such sites. While the Justice Minister Rajapakshe has denied there being such black sites, Sri Lanka’s Prime Minister, Ranil Wickremesinghe, did not. He told the New York Times “if there is any secret camps, you can close it down and get these people.”

The question then remains what is the TNA negotiating? The release of 300 prisoners only? What about the thousands of others whose families believe are  in Government custody? What is the TNA going to tell their families? If there are no black sites, what steps will the TNA take to confirm / refute this?

The TNA will ask the vote of the Tamil people before the forthcoming parliamentary elections. It will be a pity indeed if the Tamil electorate does not use the opportunity of the elections to ask pointed questions as to TNA’s position on the political detainees and how it hopes to negotiate their release. And, in the event the government names only 300 in identified prisons, what concrete steps it is going to take with Colombo to elicit the truth about the fate of the others and ensure justice for the victims’ families.

The TNA and the government as a whole have a responsibility to all citizens to investigate disappearances. Simply because someone who has disappeared is not in an authorised prison does not mean that the government’s responsibility is over. However this appears to be Prime Minister Wickremesinghe’s position when he told the New York Times interviewer, “‘there are people who are missing whose names are not found anywhere,’ which, he said, means they either “are not among the living, or they left the country. That’s all.’”

If it indeed turns out that there are only 300 political detainees in authorised prisons the government cannot simply wash its hands off by presuming the others are dead and say “that’s all”. It is the right of the families of the disappeared, whether their loved ones are in a prison or dead, to expect the Government conduct a proper investigation, and if the disappeared are found to have been killed provide the details of the deaths to the next of kin. If the government is unable or unwilling to fulfill its obligations, the international community must step in.

The issue of justice for the families of the disappeared is tied to the larger question of justice for war crimes and crimes against humanity of which Sri Lanka’s military and LTTE rebels stand accused. The past five years has seen an acrimonious contest on nature of the institutions that could best investigate, try and punish the perpetrators of these crimes.

The Sri Lanka Government insisted that all stages of this process should be run only by Sri Lankan institutions. But an outcry by victims, civil society and the international community that such an investigation would be biased against the victims, prevented this.

In March 2014 following a resolution in the UN Human Rights Council (UNHRC) the Office of High Commissioner for Human Rights began compiling a preliminary report. Its findings are expected to be presented at the UNHRC in September. Next will be to see if there are gaps in the findings and then steps needed to investigate and select an appropriate court and a system of law to try and punish the perpetrators.

Once again the Government has insisted only domestic mechanisms should be employed. But the victims and sections of civil society have insisted on an international court and legal mechanisms.

However, bedazzled perhaps by the West-leaning government established after the January elections, the US, which has generally set the tone for the western democracies’ perspective on Sri Lanka, has expressed confidence in Sri Lanka’s domestic institutions of justice with certain modifications. Speaking in May in Sri Lanka, US Secretary of State John Kerry asked Sri Lanka to “to cooperate with the United Nations as it explores the best way to mount a credible domestic investigation … that meets international standards…”

The recent revelation that only 300 prisoners remain in Government custody only confirms that the crimes committed by the Government are even more heinous than previously imagined. As such, no Sri Lanka government is going to facilitate the legal, administrative and political changes that domestic judicial institutions need to meet ‘international standards.’ The only way is for international justice to be dispensed by international courts.

So even as Tamils in Sri Lanka seek answers from the TNA on those who disappeared from Government custody, it is imperative for the Tamil diaspora to work relentlessly with US and other western democracies to demonstrate that war crime trials in Sri Lanka will only work if tried by international mechanisms, under international law established under UN guarantees.