Reply from Asian Human Rights Commission to C. A. Chandraprema's article which appeared on December 19, 2001

We appreciate the publication of Asian Human Rights Commission’s (AHRC) reply entitled "The Casual Approach to Killings" to C.A. Chandraprema’s comment, ("The Christian Worker and the ‘Disappeared’" published on 10 December 2001) published in The Island on 19 December 2001. The commentator has written a further lengthy reply stating that three main questions that he has raised have not been answered by AHRC explicitly. We set out below our answers to these questions. We wish, however, to say that the use of words such as ‘plaintiff’, ‘kangaroo court’s and ‘lynch mob’ does not manifest any form of legal erudition on the part of the Commentator. To seek due process of law is the very opposite of what is meant by the ‘kangaroo court’ and the ‘lynch mob’. Mercifully, these are things of the past in civilised societies. A commentator and a plaintiff are quite different concepts. The AHRC’s demands are for the observance of the due process of law, compliance with the international obligations under the covenants and conventions on human rights to which Sri Lanka is a party and the reform of justice institutions in Sri Lanka to enable these.

In the international law on disappearances, ãNo circumstance - whether internal political instability, threat of war, state of war, any state of emergency or suspension of individual guarantees -may be invoked in order not to comply with the obligations established in this Conventionä (Draft International Convention on the Protection of All Persons from Forced Disappearances, Article 4 (2)). The Draft convention has merely set out what is already in the international law on this matter. Further, the ãSystematic or massive practice of forced disappearance constitute a crime against humanity." (Article 3 (1) of the Draft Convention). Given this position of international law, questions relating to the existence or non-existence of civil war at the time that mass disappearances took place in the South of Sri Lanka, the question of numbers that C. A. Chandraprema makes much fuss about has no significance to the legal accountability for the disappearances, which had taken place in the South and have continued to take place in the North and East.

However, even purely for satisfying the commentator and to set the record straight, once and for all, we shall answer these questions.

As to the question whether there was a civil war or not the answer is that there was a situation of anarchy in the country and this situation of anarchy was a result of several years of undermining the rule of law. Situation of anarchy and a situation of a civil war are not the same. The legal framework for this situation of anarchy was the promulgation of the Constitution of 1978, which removed all the checks and balances which existed earlier. This Constitution remains the source of anarchy in the country. What began with this constitution escalated to a higher level of anarchy with the referendum of 1982.

What degenerated into the situation, which existed from about 1987 to 1991, was the result of these constitutional developments. The grave situation which existed from 1987 to about 1991 was the result of constitutional developments which institutionalised anarchy. The acts of the JVP during this period were brutal, cruel and violated all the norms of civilised political dissent. As such there should be no hesitation at all to condemn such acts. All human rights organisations have condemned these acts. Instead of attempting to help the country to defeat the anarchy and to return to normalcy, the JVP retaliation made the situation worse.

A statement issued by the Presidential Secretariat of under President D. B Wijetunga described the situation thus: ãthere were near civil war conditions as well as total chaos and anarchy in the countryä (from "The Introduction of the Final Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces"). Conditions of anarchy and a situation of civil war are different and these differences may be interesting for subsequent discussion. Suffice it to say that at the moment that these distinctions do not make any difference to the subject under discussion, which is the issue of legal accountability for disappearances. The existence of such a situation of civil war is not a defence or a legitimate excuse for causing of disappearances.

Regarding the question of numbers, the mandate of state commissions to inquire into enforced and involuntary removal or disappearances of persons, beginning from the 1 January 1988; thus the disappearances which took place before 1 January 1988 have not yet been officially investigated. The Final Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces states, that the time limit given in their mandate was not sufficient and ãwe were unable to investigate the incidence of disappearances which took place prior to 1 January 1988.ä Further, the Commissions recorded only the particulars of persons who came before them. What they did was not a comprehensive survey but taking down particulars from those who came before these Commissions. The Commissions had neither the resources nor the personnel to embark on exhaustive field investigations.

We quote:

"On an analysis of the evidence recorded it would appear: That persons have been involuntarily removed either from their homes, at round ups, at check points or at random sites, by police personnel, members of the armed forces or others, not identified; (b) In some cases lists of persons appear to have been given by politicians who belong to the United National Party. In most other cases, the evidence reveals that the persons involuntarily removed were either SLFP organizers or active supporters of the SLFP. It seems clear that political opponents of the then regime were eliminated under the guise of crushing the JVP. (Emphasis, ours) The very large number of killings in the Central Zone [which covers four Provinces] points to the fact that the removals and killings were with the knowledge and tacit approval of those in political power at that time.

"Attached hereto is a graph indicating the period during which killings and removals were at a peak. The graph establishes that the removals and killings showed a marked increase from the nominations for the Presidential Election in 1988 and continued in that manner until the general elections and thereafter. The security personnel who until then had dealt with the JVP problem in a fair manner were goaded into indiscriminate removals and killings, after an alleged ultimatum purported to have been issued by the JVP, that unless the service personnel deserted their posts, members of their family would be killed (Emphases, ours). It is probable that this was a ploy adopted by the then government to use the security forces to crush their political opponents." (Emphases, ours). For easy reference kindly see www.ahrchk.net/pub/mainfile.php/disappearances/87/ <http://www.ahrchk.net/pub/mainfile.php/disappearances/87/> )

The findings of other commissions confirm a similar pattern.

Chandraprema refers to an AHRC ãadvertisementä on the back cover of the Christian Worker. This was in fact a reproduction of an AHRC poster published in March 2001. In it the AHRC calls for the reform of the prosecution and criminal investigation system in Sri Lanka, restoring the rule of law, prosecution of all criminal and human rights violators and establishment of an international tribunal to prosecute mass disappearances. The reference to the mass disappearances was not only to the disappearances in the South, but also of the North and the East. While 26,877 was the number of persons in the South who came before the 4 commissions, the rest refers to numbers of disappearances in the North and the East given in several reports, in particular including the "Report of the UN Working Group on Enforced or Involuntary Disappearances" published on 21 December 1999. The figure 30,000 was given in the AHRC poster was a very conservative figure. It was not the purpose or intention of the AHRC to exaggerate the figure. Instead a deliberate attempt was made to go for more conservative number, precisely to avoid giving the impression that it wishes to sensationalise the issue.

The president of Sri Lanka, Chandrika Kumaratunga, during a interview with the BBC Sinhala Service referred to a figure of 55,000 disappearances in the South. Since the early 1990s many international and local NGOs have referred to a figure of 60,000 disappearances in the South. Whenever these figures are stated in AHRC documents, it clearly makes a distinction between the figures established by the four state commissions and other figures mentioned by various organisations. However, when calling for legal accountability, always AHRC has chosen a more conservative, than the higher number.

The third question raised by Commentator is the authenticity of the eye witness report published by the AHRC. With regard to that our response is, a) AHRC published a statement by a former detainee at the Wehera Camp. In this statement the ex-detainee describes in detail what transpired at the said camp, including the regular removal and disappearance of detainees from the camp; b) though Chandraprema flatly refuses to believe this, the AHRC carefully investigated and checked the facts mentioned by the former detainee; c) We were also satisfied that the facts stated by the former detainee were consistent with other reports received by the AHRC, particularly with details relating to other detention camps of the time found in the reports of the four state commissions; d) to safeguard the released detainees personal security, AHRC decided to withhold publishing his name, until such time that genuine judicial investigations into these matters are begun with guarantees of witness protection. In this, AHRC has acted as a responsible human rights organisation, which is unwilling to jeopardise the safety of those who turn to it for assistance.

There was no reason at all to fabricate any thing about the Wehera camp or many other camps as there are enormous numbers of people who do give details about what took place in places of detention and who are willing to come forward if a credible judicial inquiries takes place. Much frustration has been caused to many people due to the failure of the criminal investigation process and the prosecution process regarding disappearances in Sri Lanka. It is this failure that has discouraged people from coming forward to demand justice. It is written on the walls of justice in Sri Lanka that absolute impunity prevailed for the state officers and their agents who engaged in massive destruction of life by such acts as the causing of disappearances. As a state party to the International Covenant on Civil and Political Rights (ICCPR), the Sri Lankan government is under obligation to comply with the Article 2 (3) of this covenant which reads as follows:

"2 (3). Each State Party to the present Covenant undertakes:

"(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

"(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

"(c) To ensure that the competent authorities shall enforce such remedies when granted."

The AHRC is aware that many people are waiting for an opportunity to come forward and to demand justice in matters relating to disappearances if the government of Sri Lanka complies with its international obligations and provides an authentic judicial forum in this regard.

The matter arising from the conduct of the detention camps at the time is of crucial importance for this discussion. Under Sri Lankan and the international law, the right to deprive a personâs life is granted only to a properly constituted judiciary. No other person including the Chief Executive of the country or the legislators or generals of the army or any officers of law enforcement agencies has a right to make a decision on the life of any person. What happened in the period under discussion was a process of arrest which took place often by way of kidnapping, detention at a secret places, interrogation inside the detention camps using torture, arriving at a decision about the detaineeâs life, carrying out of the decision if the person was to be executed and the secret disposal of the body. Any law cannot justify these actions. All these are criminal acts. Whatever the position a person may have held in the armed forces, that person did not have any right to do such acts.

It is recognized in international law that people may be killed in a war while engaged in combat. However, the same international law obligates when a person is captured or surrendered that person has to be taken in as a prisoner and be protected. To ill-treat prisoners of war, to torture them or to assassinate them is a war crime. Chandraprema seems to disagree. He seems to think that since a state of insurgency or civil prevailed during the period under discussion, torture, summary executions and disappearances by the agents of the State were justified. He also seems to think that since such atrocities are common, there is no need to be upset. It is precisely because these crimes are common that the United Nations proposed the Conventon Against Torture (to which treaty Sri Lanka is a signatory) and developed the legislation on forced disappearances. The civilised international consensus is certainly not with Chandraprema.

As Chandraprema claims to be unaware of Asian Human Rights Commission (AHRC) we set out below a summary of AHRC perspectives for Sri Lanka which were submitted by way of several submissions to the Sri Lankan government and the UN Commission on Human Rights. These recommendations were also widely published, including in journals such as Christian Worker, which during the last 3 years have published several AHRC articles and back page advertisements in all its issues. Our position is that there is a collapse of the basic system of justice in Sri Lanka due to negative developments during the recent decades. These have undermined the rule of law and created a situation of anarchy. To overcome this situation of anarchy it is necessary to reform the criminal investigation system and the prosecution system of the country. AHRC has identified the existing prosecution system in Sri Lanka as the weakest link of the country’s justice system; that vested interests obstruct and prevent these reforms; and people themselves must play an active part in pursuing these reforms if they are ever to take place. The back cover of the Christian Worker in its December 2001 issue has the following advertisement from the AHRC:

"To Ensure Law Enforcement: Reform the Attorney General’s Functions; Split AG’s Functions from Criminal Prosecution Functions; CREATE AN INDEPENDENT PROSECUTOR; Incorporate Developments from More Developed Common Law Jurisdictions Regarding Prosecution Functions; Create Professional Links Between Criminal Investigations and Prosecutions; Implement Recommendations of the Soertsz Commission and Basnayake Commission theRegarding Public Prosecutor; FAILURE TO DO THIS WILL ENSURE CONTINUING LAWLESSNESS AND BREAKDOWN OF THE JUSTICE SYSTEM."

If these perspectives are obscure notions as Chandraprema dismissively suggests, it is a pity.

The mass disappearances of Sri Lanka has left a lasting wound in the consciousness of the Sri Lankan people. It can be healed only by genuine attempts to deal with the issue both from the point of view of justice and from a humane point of view. What AHRC calls for is not for revenge, witch-hunts or mob lynching but for justice tempered by the quality of mercy. AHRC is sure that the more reflective readers of The Island agree with this standpoint.