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Disappearances have been occurring on a large scale in the south, north and east of the country. During this year's commemoration family members of the disappeared will gather near the monument to pay respects to the dear ones who have been lost and perform religious ceremonies. Public gatherings will also be held to discuss issues of accountability relating to these disappearances. A number of organizations such as the Law Society and Trust, the Civil Monitoring Commission, the Association for Disabled ex-Service Personnel, the Neelan Tiruchelvam Trust and the Meepura Newspaper have also officially joined in.
Perhaps on this occasion a number of salient features of disappearances in Sri Lanka need to be recaptured.
Disappearances are, for the most part, preceded by abductions -- the structuring of disappearances is designed in such a way to as to deny liability. Those who conduct an abduction, which is the first step in a series of actions that lead to a disappearance, disguise themselves and also use vehicles which cannot be easily recognized. In this way the legal obligations relating to arrest are circumvented.
Any arrest, according to law, has to be carried out by officers who can be identified and who are obliged to reveal their identities. Some instructions to law enforcement agencies have gone to the extent of requiring the arresting officers to give a receipt of arrest. They are also required to fax details of the arrest to the higher ranking police officers and the Human Rights Commission.
Law enforcement officers are expected to travel in official vehicles which are clearly identified. Only law enforcement officers authorized by their immediate superiors are allowed to carry out arrests. However, abductions are often done without following any form of written authorization by superiors. Often persons who do not belong to the law enforcement agencies also carry out abductions with the direct or indirect approval of officers of these agencies. Abductions are not reported to courts -- there are very strict regulations relating to the production of persons before a court within the time stipulated by law. In the case of persons who are abducted with the ultimate purpose of making them disappear, no such reports are made to courts. This again demonstrates deliberate design in dealing with disappearances.
The places of detention are kept hidden -- under normal law places where persons may be detained is clearly demarcated. To hold persons in a place other than an authorized center of detention amounts to a criminal act. However, when persons are arrested for the purpose of making them disappear they can be kept anyplace. When law enforcement officers engage in such activities it implies that the higher authorities are authorizing them to do so. Thus, this also indicates a clearly designed activity that takes place with the approval of higher authorities.
No written records are kept -- under normal law there are clear legal provisions requiring the police or military officers who make arrests to make detailed notes about the arrest, detention and interrogation. Higher authorities are expected to examine these records and to take appropriate steps on the basis of the information provided in these records, either to take legal action against the suspects or to release them. The higher authorities also bear responsibility to ensure proper medical attention is given to the suspects.
Every disappearance in which a law enforcement agency is involved, directly or indirectly, is in fact a killing in custody. It is a violation of the law as well as of international law as provided for in the Geneva Conventions. It is a murder with deliberate intention, as the entire process is organized to culminate in the killing of the arrested person while in the custody of a law enforcement agency.
Once again, the higher authorities of the law enforcement agency, whether it be the police or the military, are responsible for each killing. They are complicit in designing the process of such killings and also carrying out the killing.
Disappearances imply not only killings but also the secret and illegal disposal of bodies. Once again the whole process of illegal burials is part of the design of disappearances. Thus, in this process too, the higher authorities of the particular agency bear responsibility. To claim ignorance of such a well designed process at the very least amounts to culpable negligence.
There are also some disappearances which have been carried out either by terrorists or criminals. In these activities the law enforcement agencies do not bear direct responsibility for the act. However, they and the state bear responsibility for their failure to prevent such crimes and to take effective action to investigate, arrest and prosecute the offenders.
Large-scale disappearances, as they have been happening in Sri Lanka continuously since 1971, can only occur when there is political approval for such activities by the regime in power. Law enforcement agencies engage in such acts. Thus, it can be said that those involved in serious breaches of the law have assurances that those in power will prevent investigations or prosecutions from taking place. This assurance has become the cornerstone of the relationship between the political regime and the police and military throughout this long period.
There is today an entrenched political and legal culture in which refusal to investigate or prosecute disappearances and other abuses of human rights remains a foundation stone. It is an unwritten code that politicians will do all within their power to stop investigations into allegations of disappearances and other related matters. The operation of the criminal justice system takes place only outside the boundary of this agreement between those in power and the police and military.
This agreement to ensure that no investigations into these matters take place has created obstacles for the local criminal investigation system to the extent that it has become dysfunctional. Officers of the Criminal Investigation Division who, propelled by their professional obligations, try to undertake investigations into this forbidden territory, put themselves at serious risk.
The numbers of persons whose careers within the investigation field have suffered serious setbacks, either due to their lack of understanding of the rules of this forbidden area, or due to their defiance of these rules in the pursuit of the best traditions of their profession, are many. An entire psychology within the criminal investigation machinery in the country has become completely twisted due to these experiences. Today an investigation into a case where a state agency was involved would be considered an act of great disloyalty to the police and the military.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
