Practice Relating to Rule 98. Enforced Disappearance
In 1994, the President of Sri Lanka established a Commission of Inquiry into Involuntary Removal or Disappearances of Persons in certain provinces since 1 January 1988. The Commission was charged with inquiring and reporting on whether any such removals or disappearances had actually occurred; whether there existed any credible material indicating who was responsible and identifying the legal proceedings that could be taken against the persons held to be responsible; the measures necessary to prevent repetition of occurrences; and the relief that should be afforded to the families of those removed or disappeared.
In 2012, in a section entitled “Theme area: Human Rights” of its National Plan of Action to Implement the Recommendations of the Lessons Learnt and Reconciliation Commission, which also includes a section entitled “Theme area: International Humanitarian Law Issues”, Sri Lanka’s Government stated:
9.59 – Frame domestic legislation to specifically criminalize enforced or involuntary disappearances.
1) Examine the need for legislation
2) Formulate and present law to Parliament, if law reform is found to be necessary with emphasis on the need to impose heavy terms of imprisonment as a deterrent.
In 2008, in its initial report to the Committee on the Rights of the Child under the 2000 Optional Protocol on the Involvement of Children in Armed Conflict, Sri Lanka stated: “Reports of on-going investigations into alleged disappearances [of children] have been called for”.
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated:
A process has been commenced through the Ministry of Disaster Management and Human Rights to deal with the backlog of cases relating to Involuntary and Enforced Disappearances. The process is to be included in the proposed National Action Plan for Human Rights as a priority item. In addition a separate full time unit will be set up to deal with these cases while advice has been sought from the United Nations Working Group on how best to ensure clarification or closure of cases relating to the period before 1994. With regard to recent cases, a system to ensure prompt reporting has been put in place, and recently a report was sent confirming that all cases reported for 2008 have been put before the Courts by the Police. The Committee meets regularly, and has instituted a system of regular reports which has also led to more active police investigation of allegations.
In 2012, in its National Plan of Action to Implement the Recommendations of the Lessons Learnt and Reconciliation Commission, Sri Lanka’s Government stated:
Theme area: International Humanitarian Law Issues
9.9, 9.37a. – Ascertain more fully the circumstances under which specific instances of death or injury to civilians could have occurred, and if such investigations disclose wrongful conduct, prosecute and punish the wrongdoers.
1. Complete ongoing disciplinary process being conducted in terms of Armed Forces statutes.
2. Upon conclusion, take follow up action to prosecute, where relevant.
3. Use the existing system as provided for in the Criminal Procedure Code to originate a complaint and give such mechanism sufficient publicity.
9.23 – Launch a full investigation into allegations of disappearances after surrender/arrest and where such investigations produce evidence of any unlawful act on the part of individual members of the Army, prosecute and punish the wrongdoers.
1), 2) and 3) above.
Sri Lanka’s Government also stated:
Theme area: Human Rights
9.48 – Direct law enforcement authorities to take immediate steps to ensure that allegations (of abductions, enforced or involuntary disappearances, and arbitrary detention) are properly investigated into, and perpetrators brought to justice.
1. Identify impediments, if any, to the effective enforcement of the law. That the offences are visited with serious sanctions.
2. Strengthen investigation skills of Police.
3. Strengthen access to justice.
4. Enhance the capacity of the Police to put in place a more effective surveillance mechanism of the locality in cooperation with the local community and establish community policing.
9.51 – Appoint a Special Commissioner of Investigation to investigate alleged disappearances and provide material to the Attorney General to initiate criminal proceedings as appropriate. Provide the Office of the Commissioner with experienced investigators to collect and process information.
1. Invoke the present procedures as available in the Code of Criminal Procedures with priority given to such complaints.
2. Sensitize the public with regard to availability of the various mechanisms through the GIC [Government Information Center] (1919).
3. Enhance the capacity of the present GIC (1919) to entertain the receipt of information.