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Published online by Cambridge University Press: 19 November 2018
In October 2015, by co-sponsoring United Nations Human Rights Council Resolution 30/1 entitled “Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”, the Sri Lankan government formally committed to embarking on a transitional justice process following three decades of armed conflict. Several thousand people allegedly disappeared during this period, often in connection with the armed conflict or as a result of internal disturbances. It is in this context that the Office on Missing Persons (OMP) was operationalized in 2018. This article discusses the nature of tracing investigations into the fate and whereabouts of missing persons of the type to be carried out by the OMP. It argues that these investigations, while ostensibly pursuing a humanitarian approach, cannot be artificially and hermetically separated from criminal justice processes. Further, it seeks to demonstrate that an integrated approach whereby strong linkages with criminal processes are provided for and encouraged best serves the interests of truth and justice.
1 United Nations (UN) Office of the High Commissioner for Human Rights (OHCHR), “Sri Lanka's Disappearances: ‘The Road Towards Truth and Justice Is the Right One to Take’”, 15 September 2016, available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20499&LangID=E (all internet references were accessed in August 2017).
2 UN Human Rights Council, Res. 30/1, “Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”, UN Doc. A/HRC/30/1, 1 October 2015.
3 High-Level Segment of the 34th Session of the UN Human Rights Council, “Statement by Hon. Mangala Samaraweera, MP, Minister of Foreign Affairs of Sri Lanka”, Geneva, 28 February 2017, available at: www.mfa.gov.lk/wp-content/uploads/2018/03/34-8.pdf.
4 The bill entitled “Office for Reparations”, gazetted on 25 June 2018, has a similar mandate ratione materiae to that of the OMP.
5 See Kishali Pinto Jayawardena, Post-War Justice in Sri Lanka: Rule of Law, the Criminal Justice System, and Commissions of Inquiry, International Commission of Jurists, January 2010; Lassée, Isabelle, The Last Stages of the War: Clarifying the Application of IHL, South Asian Centre for Legal Studies, November 2015Google Scholar.
6 Consultation Task Force on Reconciliation Mechanisms (CTF), Final Report of the Consultation Task Force on Reconciliation Mechanisms, Vol. 1, 17 November 2016 (CTF Final Report), p. 188, available at: https://tinyurl.com/ycqky655. Several participants stressed that “if the OMP is to truly provide them with the solutions, it has to address the obstacles they have already faced from the State, and crucially, to ensure that it wouldn't repeating errors of other State agencies”.
7 Human Rights Watch, “Sri Lanka: Consultations Lacking on Missing Persons’ Office”, 27 May 2017, available at: www.hrw.org/news/2016/05/27/sri-lanka-consultations-lacking-missing-persons-office.
8 CTF Final Report, above note 6, p. 230: “Although there is no provision for the OMP to get directly involved with prosecutions within the existing framework of the OMP, the expectation by affected families that the findings of the OMP would lead to some form of justice, cannot be overstated.”
9 Sri Lanka, Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act, No. 14 of 2016 (OMP Act).
11 Ibid. Sri Lanka ratified the ICPPED in May 2016. In March 2017, Sri Lanka enacted the International Convention for the Protection of All Persons from Enforced Disappearance Act, No. 5 of 2018, available at: srilankalaw.lk/gazette/2018_pdf/05-2018_E.pdf. The Act criminalizes enforced disappearances.
12 See, for example, ICRC, Action in Nepal for Missing Persons and Their Families, Geneva, April 2011, p. 1, available at: www.icrc.org/eng/assets/files/2011/missing-nepal-report-icrc-2011-04.pdf.
13 ICRC, “Guiding Principles/Model Law on the Missing”, in The Domestic Implementation of International Humanitarian Law: A Manual, Geneva, 2015Google Scholar, Annex IV, available at: www.icrc.org/eng/resources/documents/publication/pdvd40.htm
14 “Enforced disappearances are not specifically listed as grave breaches or other serious violations of IHL. However, when an act of enforced disappearance amounts to one of the grave breaches listed in the Geneva Conventions and Additional Protocol I (such as torture, inhuman treatment, willfully causing great suffering or serious injury to body or health, and taking of hostages), it must be investigated and the perpetrators prosecuted as required by the grave breaches regime.” ICRC Advisory Service, “Missing Persons and Their Families”, Geneva, December 2015, available at: www.icrc.org/en/download/file/17255/missing_persons_and_their_families.pdf.
15 Ibid.: “When the ICRC collects and processes information relating to missing persons, it does so within the framework of its neutral, independent, impartial and strictly humanitarian action. It will not participate in or associate itself with any process aimed at gathering evidence for the criminal prosecution of persons suspected of having committed a crime, nor will it cooperate with any such prosecution.”
16 See “Updated: Flip-Flopping on Accountability – a Timeline”, Groundviews, March 2017, available at: groundviews.org/2017/03/27/updated-flip-flopping-on-accountability-a-timeline/.
18 See, for example, “Mangala Urges Halt to Misleading Information over Office for Missing Persons Act”, DailyFT, 26 August 2016, available at: www.ft.lk/article/564001/ft. See also “An Open Letter to the Most Venerable Mahanayake Theras and Maha Sangha by Mahina Rajapaksa”, Lanka Business Online, 24 July 2017, available at: www.lankabusinessonline.com/new-laws-to-give-foreign-powers-a-central-role-in-persecuting-armed-forces-mr/. Former president Mahinda Rajapakshe characterizes the OMP as a body set up to “give foreign powers a central role in persecuting our armed forces”. See “Wimal Weerawansa Wants the OMP Bill to be Brought Back to Parliament”, Tamil Focus, 24 August 2016, available at: news.tamilfocus.com/politics/02/102015. Member of Parliament Wimal Weerawansa characterizes the OMP as a “factory” for generating evidence with which to accuse and punish war heroes.
19 “Betraying the Armed Forces through the ‘Office of Missing Persons’”, Colombo Telegraph, 20 July 2016, available at: www.colombotelegraph.com/index.php/betraying-the-armed-forces-through-the-office-of-missing-persons/.
20 Ibid. Yahapalana means “good governance” in Sinhala. The current administration is referred to as the yahapalana government because “good governance” was its main electoral platform during the January 2015 presidential elections.
21 See OMP Act, above note 9, section 12(i) for the only provision that relates to the OMP's obligation to contribute to criminal investigations. This section specifies that “where it appears to the OMP that an offence within the meaning of the Penal Code or any other law, has been committed, that warrants investigation, the OMP may, after consultation with such relatives of the missing person as it deems fit, in due consideration of the best interests of the victims, relatives and society, report the same to the relevant law enforcement or prosecuting authority: such report will provide information relating to the missing person's civil status (such as the name, age and gender of the missing person), the place(s) or district(s) in which the missing person was last seen and the date thereof”.
22 See CTF Final Report, above note 6, pp. 230–232.
23 See ICPPED, Art. 12.4, recalling the need to take measures “to prevent and sanction acts that hinder the conduct of an investigation”, including reprisals against witnesses.
24 It is important to recall in this respect that underlying the crime of enforced disappearance is the perpetrators’ willingness to hide evidence of their crimes. Therefore, perpetrators not only refrain from cooperating with investigations but often also actively temper with evidence in an attempt to hinder those investigations. See, for example, International Commission on Missing Persons (ICMP), Bosnia and Herzegovina: Missing Persons from the Armed Conflicts of the 1990s: A Stocktaking, Sarajevo, 2014, p. 94, available at: www.icmp.int/wp-content/uploads/2014/12/StocktakingReport_ENG_web.pdf.
25 UN Security Council, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, paras 22–24; UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc. S/2004/616, 23 August 2004, paras 10, 64(c); UN Economic and Social Council, Res. 1989/65, “Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions”, 24 May 1989, para. 19. See also UNGA Res. 47/133, “Declaration on the Protection of All Persons from Enforced Disappearance”, UN GAOR, 47th Session, Supp. No. 49, 18 December 1992, Art. 18.
26 See, for example, UN Human Rights Committee (HRC), CCPR General Comment No. 20, “Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment)”, 10 March 1992, para. 15. On the obligation to prosecute, see, more generally, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Arts 5(1)(a–c), 5(2); ICPPED, Arts 9(1)(b–c), 9(2); HRC, CCPR General Comment No. 31, “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant”, 26 May 2004. While the Geneva Conventions also provide for an obligation to prosecute those who allegedly committed grave breaches (Geneva Convention I, Art. 49; Geneva Convention II, Art. 50; Geneva Convention III, Art. 129; Geneva Convention IV, Art. 146), these provisions only apply in international armed conflicts.
27 In Bosnia and Herzegovina, the criminal procedure codes of the country were amended to allow plea bargaining in appropriate circumstances. This has been a mechanism to obtain evidence/information regarding mass graves from perpetrators. See, in this regard, Working Group on Enforced or Involuntary Disappearances, Mission to Bosnia and Herzegovina, 14–21 June 2010, available at: www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A-HRC-16-48-Add1_fr.pdf.
28 ICRC, above note 13, Commentary on Arts 15, 17.
29 OMP Act, above note 9, section 10(1)(e).
31 ICRC, Missing Persons, DNA Analysis and Identification of Human Remains, Geneva, 2009, pp. 11–14, available at: www.icrc.org/eng/assets/files/other/icrc_002_4010.pdf.
32 Melanie Klinker, “Towards Mass Grave Protection Guidelines”, Human Remains and Violence, Vol. 3, No. 1, 2017, p. 53, available at: eprints.bournemouth.ac.uk/29259/7/Towards%20mass-grave%20protection%20guidelines.pdf.
34 OMP Act, above note 9, sections 12(f), 12(g).
35 Medhaka Fernando and Isabelle Lassée, Operationalizing the Office on Missing Persons: Manual of Best Practices, South Asian Centre for Legal Studies, November 2016 (OMP Manual), Chap. 5, “Receiving and Procuring Information”.
36 European Court of Human Rights (ECtHR), Leonidis v. Greece, Appl. No. 43326/05, Judgment, 8 January 2009, para. 68: “The investigation must be capable, firstly, of ascertaining the circumstances in which the incident took place and, secondly, of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence.”
37 Commissions of Inquiry on Sri Lanka Act, No. 17 of 1948, sections 7 to 12.
38 OMP Act, above note 9, section 10(1)(e): “The OMP shall have the mandate to collate data related to missing persons obtained by processes presently being carried out, or which were previously carried out, by other institutions, organizations, Government Departments and Commissions of Inquiry and Special Presidential Commission of Inquiry.”
43 Ibid., section 12(f). The only obligation is for the OMP to report to the inspector-general of police within twenty-four hours of conducting the search. Other places may also be searched provided that the OMP has applied for and obtained a warrant (section 12(g)).
45 UN Human Rights Council, Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, UN Doc. A/HRC/36/50, 21 August 2017, para. 82.
47 Committee on Missing Persons in Cyprus, “About the CMP”, 2015, available at: www.cmp-cyprus.org/content/about-cmp-0.
48 ECtHR, Cyprus v. Turkey, Appl. No. 25781/94, Judgment, 10 May 2001, para. 135: “[T]he respondent State's procedurals obligations at issue cannot be discharged through its contribution to the investigatory work of the CMP. Like the Commission, the Court notes that, although the CMP's procedures are undoubtedly useful for the humanitarian purpose for which they were established, they are not of themselves sufficient to meet the standard of an effective investigation required by Article 2 of the Convention, especially in view of the narrow scope of that body's investigations.”
50 Republic of Iraq, Law on Protection of Mass Graves, Law No. 5, 2006, Art. 1(II).
55 The appointment of FAFG experts is often pursuant to a request by the human rights or victims’ organization that initiated the complaint. FAFG also collects ante-mortem DNA data from families, after having received informed consent. The families’ genetic profiles are entered into the National Genetic Database for Families and Victims of Enforced Disappearance for comparison with victims’ genetic profiles extracted from DNA samples collected during previous investigations. In the event of a positive identification, both the family and the prosecutor are informed.
56 Bosnia and Herzegovina, Law on Missing Persons, 2004, Art. 7.
58 ICMP, above note 24, p. 46.
59 Law on Missing Persons, above note 56, Art. 7.
60 Republic of Kosovo, Law No. 04/L-023 on Missing Persons, 29 August 2011, available at: www.kuvendikosoves.org/common/docs/ligjet/Law%20on%20missing%20persons.pdf.
62 ICMP, Missing Persons from the Kosovo Conflict and Its Aftermath: A Stocktaking, 2017, p. 17, available at: www.icmp.int/wp-content/uploads/2017/05/Kosovo-stocktaking-ENG.pdf
63 ICMP, “Where We Work: Colombia”, 2014, available at: www.icmp.int/where-we-work/the-americas/latin-america-and-the-caribbean/colombia/. Decree 929 of 2007 defined the structure and scope of work of the Commission.
64 OHCHR, “Committee on Enforced Disappearances Considers Report of Colombia”, available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20651&LangID=E; Lisa Haugaard and Kelly Nicholls, Breaking the Silence: In Search of Colombia's Disappeared, Latin American Working Group Education Fund, December 2010, p. 10.
65 ICMP, above note 63.
66 Republic of Colombia, Decreto 589 de 2017 por el Cual se Organiza la Unidad de Búsqueda de Personas dadas por Desaparecidas en el Contexto y en Razón del Conflicto Armado, 5 April 2017, available at: https://tinyurl.com/y7lecbwa.
71 See Republic of Peru, Ley No. 30470 de búsqueda de personas desaparecidas durante el período de violencia 1980–2000, 22 June 2016, available at: busquedas.elperuano.com.pe/download/url/ley-de-busqueda-de-personas-desaparecidas-durante-el-periodo-ley-n-30470-1395654-1.
75 Republic of El Salvador, Decreto No. 33, Creacion de la Comision Nacional de Busqueda de Personas Adultas Desaparecidas en el Contexto del Conflicto Armado de El Salvador, 21 August 2017, available at: www.refworld.org.es/pdfid/59d28c8e4.pdf.
77 See Federal Democratic Republic of Nepal, Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071 (2014), 11 May 2014, Art. 25, available at: www.ciedp.gov.np/downloadfile/actsrulesguidelines_1502092337.pdf.
79 UN Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on His Mission to Sri Lanka, UN Doc. A/HRC/34/54/Add.2, 22 December 2016, para. 94.
80 OMP Act, above note 9, section 17(2).
82 See above section “Humanitarian and Criminal Approaches: Converging Investigations”.
83 Sri Lanka, Bribery Commission Act No.19 of 1994, sections 12, 13.
84 OMP Act, above note 9, sections 16, 17, 18.
87 For example, in South Africa a tracing body known as the Missing Persons Task Team (MPTT) has been placed within South Africa's National Prosecuting Authority (NPA). There have been allegations of selective investigations levelled against the MPTT by certain victims. See “NPA missing Persons Task Team Under Fire”, Press Reader, 15 February 2016, available at: www.pressreader.com/south-africa/the-new-age-free-state/20160215/281702613768477.
88 See, for example, International Criminal Tribunal for Rwanda, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Trial Chamber), 2 September 1998, paras 237–238.
89 International Criminal Court, Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment Pursuant to Art. 74 of the Statute (Trial Chamber I), 14 March 2012, para. 479.
90 CTF, Interim Report on the Office on Missing Persons Bill and Issues Concerning the Missing, the Disappeared and the Surrendered, August 2016, p. xvii, available at: https://tinyurl.com/yctq5qy8.
91 In Bosnia and Herzegovina, the Missing Persons Institute collects, classifies and preserves documents relating to missing persons, and shares such information with the Office of the Prosecutor of Bosnia and Herzegovina. Further, the Institute carries out joint investigations with the Special Department on War Crimes located within the Office of the Prosecutor and forwards exhumations requests to the latter. See, in this regard, ICMP, above note 24, p. 131.
92 In Bosnia and Herzegovina, since 2011, the Prosecutor's Office has exercised full supervisory responsibilities over exhumation activities relating to both tracing and criminal investigations. See Ibid., p. 46.
93 OMP Manual, above note 35, Chap. 5, “Receiving and Procuring Information”.
95 OMP Act, above note 9, section 12(d). In a partial recognition of the intricate nature of tracing and criminal investigations, the OMP Act limits the role of the OMP for the carrying out of excavations and/or exhumations of gravesites. While the Office may apply to the Magistrates’ Court with territorial jurisdiction for an order to carry out excavations and/or exhumations, its subsequent role as envisaged in the Act will be limited to that of an observer. Accordingly, excavations and exhumations must be carried out under the purview of a Magistrates’ Court.
98 International Institute of Higher Studies in Criminal Sciences, Siracusa Guidelines for International, Regional and National Fact-finding Bodies, eds M. Cherif Bassiouni and Christina Abraham, Intersentia, Cambridge, 2013, guideline 8.6.
99 Ibid., guideline 8.7: “physical evidence should be properly preserved and protected from contamination while in the custody of the fact-finding body”.
100 OMP Manual, above note 35, Chap. 5, “Receiving and Procuring Information”.
101 OMP Act, above note 9, section 13(1)(d).
103 Federal Democratic Republic of Nepal, Commission of Investigation on Enforced Disappeared Person Rule, 2072 (2016), 13 March 2016, Rule 28(1), available at: www.ciedp.gov.np/downloadfile/CIEDP%20Rules_1464689744.pdf; Bosnia and Herzegovina, Witness Protection Program Law, 2003, Art. 6(2), available at: https://advokat-prnjavorac.com/legislation/The-Law-on-Witness-Protection-Programme-in-Bosnia-and-Herzegovina.pdf; Republic of Kenya, Witness Protection Act, 2012, section 23(3), available at: www.unodc.org/res/cld/document/ken/witness-protection-act_html/Kenya_Witness_Protection_Act_Revised_Edition_2012.pdf; Republic of the Philippines, An Act Providing for a Witness Protection, Security and Benefit Programme and for Other Purposes, 24 April 1991, sections 3, 7, available at: www.lawphil.net/statutes/repacts/ra1991/ra_6981_1991.html.
104 It is noteworthy that when the witness's concerns are not related to his/her security, granting confidentiality to his/her information is rarely sufficient to incentivize participation in a truth-seeking process for the reasons explained in the “Argument 2” section above.
105 OMP Manual, above note 35, Chapter 3, “Witness Protection”.
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