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When the world was celebrating Valentine’s Day on February 14, in Sri Lanka, hundreds of families of those who were forcibly disappeared observed it as “Missing Lovers Day”. They converged in Colombo and marched to the offices of Prime Minister Mahinda Rajapaksa and President Gotabaya Rajapaksa demanding justice, truth and reparation for the loss of their loved ones.

They dispersed only after the PM promised to look into their complaints about those missing during the operations against Janatha Vimukthi Peramuna Marxist extremists during 1988-89. An official statement issued later stated that the additional secretary to the PM had been tasked with taking follow-up action.

This is not the first time these families have agitated, nor the first time promises were made to them by successive presidents. In addition to the largely Sinhala mothers and wives who observed it as “Missing Lovers Day”, for the last three years in the Northern Province, Tamil families have been agitating for government accountability for over 20,000 of their kin who “disappeared” during and after the Eelam war that ended a decade ago. Gotabaya Rajapaksa, who was defence secretary during the last phase of the Eelam War, recently acknowledged that more than 20,000 who disappeared during the civil war were dead. However, after a furore over these remarks, the presidential media division clarified that he also said that after “necessary investigations”, steps would be taken to issue death certificates and provide support for the families.

Sri Lanka has one of the world’s highest numbers of enforced disappearances, with a huge backlog from the late 1980s. In 2016, former President Chandrika Kumaratunga while heading the Office for National Unity and Reconciliation had told reporters that various commissions since 1994 had documented 65,000 people were missing or “not found to be dead”. According to the Office on Missing Persons, set up by the government in 2018, up to 20,000 people could be missing since 1983.

Enforced disappearances are not unique to Lanka. Over the years, these  have been documented in 34 countries, including the US, Russia, China and in South Asia (India, Bangladesh, Nepal, Pakistan and Lanka). The most notorious of them all was Spain. Enforced disappearances here took place between the period of the Spanish civil war and General Franco’s dictatorship (1939 and 1975) when about 1,14,226 people “disappeared,” according to a UN report.

Cold War priorities of the US in support of military rulers also resulted in enforced disappearances in Latin America. During the “Dirty War” of Argentina’s military regime from 1976-83 against leftist and Peronist opposition, between 9,000 and 30,000 people “disappeared”. Disappearances in Colombia (around 20,000), Chile (2,279) and Guatemala (40,000-50,000 in civil war) are part of the dark history of Latin America.

The US global war on jihadi terror, unleashed after Al Qaeda’s terrorist attacks on September 11, 2001, led to the coining of a new term– “extraordinary rendition”. This is the illegal transfer of a detainee to the custody of a foreign government for detention and interrogation. The CIA launched a secret extraordinary rendition and detention programme worldwide with the cooperation of over a dozen governments.

According to Open Society Foundations’ Justice Initiative report, by 2013, at least 136 persons were “extraordinarily rendered” by the CIA. At least 54 governments were reported to have participated in the programme, giving it unofficial international legitimacy. The US Justice Department authorised the CIA to use what President George W Bush called “enhanced interrogation techniques”, a euphemism for the use of torture during interrogation.

According to Amnesty International’s June 2007 report, at least 39 detainees, who were believed to have been held in secret sites overseas by the US, were missing. The US Department of Defense kept the identity of the detainees held in Guantanamo Bay detention camp secret for four years, releasing an official list of 558 detainees on April 20, 2006 after a court order. Another list published a month later listed 759 individuals who had been held in Guantanamo.

The UN General Assembly had been concerned about enforced disappearances from 1973 onwards as part of concerns over human rights.  It culminated in the framing of the UN General Assembly resolution 47/133 on December 18, 1992 proclaiming the International Convention for the Protection of All Persons from Enforced Disappearances (ICPED). The Convention explains the responsibility of member states on enforced disappearance, not only by defining it but also their responsibility and procedure. Article 1 of ICPED states that “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”.

Article 2 defines enforced disappearance “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 place such a person outside the protection of the law”.

It is significant that Article 5 explicitly states “the widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.”

Enforced disappearance is also recognised as part of the general definition of the 1998 Rome Statute establishing the International Criminal Court.  Equally significant is Article 7 enjoining each State which is party to the Convention to “make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness”. This underlines the need for States to specifically recognise it as a criminal act.

Internationally, the right of families to know the truth relating to enforced disappearances or missing persons is recognized in a number of instruments. Article 32 of Protocol I to the Geneva Conventions establishes “the right of families to know the fate of their [disappeared] relative”. Article 24 of the ICPED states: “Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard.”

South Asia has a poor record with regard to accountability for enforced disappearances. The International Commission of Jurists’ August 2017 report–No More Missing Persons’ Criminalisation of Enforced Disappearance in South Asia–provides an analysis of how not only in Sri Lanka, but in India, Bangladesh, Nepal and Pakistan, “enforced disappearance has been used against nationalist or separatist groups or in the name of countering terrorism or insurgency”. The report, analysing the criminalisation of the practice under national laws, says the five South Asian states failed in fulfilling their obligations “to ensure acts of enforced disappearance constitute a distinct offence under national law” in their domestic legislation.

However, ever since the report was published, Sri Lanka has made enforced disappearance a criminal act by enacting ICPED Act No 5 of 2018. However, the moot point is whether the new enactment would be applied to clear the huge backlog of 20,000 plus cases. On the other hand, while India and Pakistan have signed the ICPED, they have not ratified it, nor have they initiated special legislations to recognize enforced disappearance as a distinct criminal offense. Bangladesh and Nepal have neither signed the protocol nor ratified it.

According to the Association of Parents of Disappeared Persons (APDP) in J&K, there have been more than 8,000 cases of enforced and involuntary disappearances between 1989 and 2009. However, the state and central governments say around 4,000 are missing, most of whom are believed to have crossed over to PoK. In January 2017, Chief Minister Mehbooba Mufti told the state assembly that 4,008 persons who were missing from the state were in PoK for arms training.

The Office of the United Nations High Commissioner for Human Rights (OHCHR) released its first report on the human rights situation in J&K and PoK on June 14, 2018. It focused on allegations of serious human rights violations, notably excessive use of force by Indian security forces that led to numerous civilian casualties, arbitrary detention and impunity for human rights violations and human rights abuses by armed groups allegedly supported by Pakistan. The report also found that human rights violations in PoK were more structural in nature; these included restrictions on freedom of expression and freedom of association, institutional discrimination of minority groups and misuse of anti-terror laws to target political opponents and activists. The report made a wide range of recommendations to India and of Pakistan and also urged the Human Rights Council to consider its findings, including the possible establishment of an international commission of inquiry to conduct a comprehensive independent investigation into allegations of human rights violations in Kashmir.

On September 10, 2018, the High Commissioner for Human Rights informed the Human Rights Council during its 39th session that OHCHR report’s findings and recommendations had “not been followed up with meaningful improvements, or even open and serious discussions on how the grave issues raised could be addressed”. The report said neither India nor Pakistan had taken any concrete steps towards providing OHCHR with unconditional access to their respective sides of the Line of Control.

It is obvious that the issue of enforced disappearance is linked to compulsions of realpolitik of a nation, as much as national security. It is directly related to the overall standards of rule of law, political governance and observance of human rights. When states are combating transnational terrorism, it becomes imperative that instruments of power of the State are used in a calibrated fashion to ensure that innocent populations are not affected. There is a need to maintain free flow of information to the public to clear their complaints. This will improve the credibility of the State.

—The writer is a military intelligence specialist on South Asia, associated with the Chennai Centre for China Studies and the International Law and Strategic Studies Institute

Lead picture: lankainformation.lk 

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