In the immediate aftermath of the war, the government position was that there were zero civilian casualties. The government decision was to have no engagement at all on the issue. This position had popular support from the majority of the country’s ethnically divided population. With regard to the controversial last phase of the war, the LTTE contributed to the high death toll by holding at least 300,000 civilians as human shields to make it more difficult for the Sri Lankan security forces to engage them in direct combat. The position of the government was that the security forces did their utmost to minimize civilian casualties and therefore did not employ heavy weapons. As for the treatment meted out to surrendered LTTE leaders and cadre, the government was able to show the rehabilitation and release of more than 12,000 of them.
This situation of denial which is unacceptable to those whose focus is human rights as against national security, only changed after the defeat of the Rajapaksa government in 2015. Most governments in the world would tend to do what President Rajapaksa appears to be doing, which is to defend the armed forces to the hilt against accusations of human rights violations especially when they are seen to be fighting the country’s mortal enemies. President Donald Trump in the United States has exemplified this approach by recently pardoning a US military officer convicted of wantonly killing Iraq civilians, and whose conduct was so atrocious that evidence against him was given by his own soldiers.
However, the Sirisena-Wickremesinghe government that took power did not have the same concern about self-indicting themselves for crimes committed during the war as they were not decision makers during the last phase of the war the violence intensified. They agreed to a process of truth seeking, accountability, reparation and institutional reform that was unique for a state that had finally defeated its mortal foe. But as the focus was the last phase of the war, this was not supported by the general population or by most leaders in the government itself. One reason was that they saw a double standard in those who had ignored earlier phases of the war that had also seen clear manifestations of war crimes. These atrocities included the LTTE killing of 600 policemen who had surrendered to the LTTE on government orders in 1990, and the wiping out of the Mullaitivu army camp consisting of over one thousand soldiers in 1996 with no prisoners taken.
Towards the end of February the government will face the UN Human Rights Council in Geneva and make its case regarding the implementation of Resolution 30/1 and issues arising out of it. While there are some areas in which implementation has been successful, such as signing and ratifying the International Convention for the Protection of All Persons from Enforced Disappearance there are other areas in which implementation has been slow and even non-existent. Examples of the latter are the setting up of the Office on Missing Persons which has yet to find a single missing person due to various obstacles, and in holding perpetrators to account for attacks on journalists, human rights defenders, religious minorities and civil society. There have also been areas in which there has been no progress at all such as the establishment of a judicial mechanism to ensure accountability which has yet to take place.
It is in the run up to the forthcoming UN Human Rights Council meeting in Geneva that President Gotabaya Rajapaksa made his controversial statement that there were no survivors to be found amongst those who went missing. This is similar to what former Prime Minister Ranil Wickremesinghe said in an interview with the international media in 2016. He said that those who had surrendered at the end of the war and were still missing in Sri Lanka were most probably dead. This assertion by the Prime Minister was strongly criticized at that time by families of the victims, civil society and international human rights groups. The statement issued by the Women’s Action Network regarding President Rajapaksa’s recent statement has been particularly forthright.
With the ratification of the International Convention for the Protection of All Persons from Enforced Disappearance and the passage of enabling legislation “Every victim and relative of the victim shall have the right to know the truth regarding the circumstances of an enforced disappearance, the progress and results of the investigation as are carried out by the law enforcement authorities, and the fate of the disappeared person.” (Act No. 5 of 2018, sec. 14(1).) The WAN statement notes that “Families have long resisted the government’s efforts to silence their demands with death certificates and compensation. Their concerns and input helped create the Certificate of Absence procedure in the OMP Act (Act No. 14 of 2016, section 13). As relatives of the disappeared passionately show by occupying the streets, truth is not just about determining if loved ones are alive, but instead determining the full scope of what happened.”
The government’s preferred solution appears to be to have the Office on Missing Persons declare those missing as dead and award compensation to their families. But this will not be acceptable to the families of missing persons who will not accept a general pronouncement by the government that their loved ones are dead even if they have been missing for ten years or more. They will also want to know when and where they died and if possible how? This is also the position of those whose relatives went missing during the period of the JVP insurgency in the late 1980s. One such is a colleague of mine whose brother was taken away by government death squads in 1989. He continues to want to know what happened to his brother. He has an inkling of what happened but is not sure and he wants to know. He will not stop his quest for the truth, and neither will the tens of thousands of others whose are similarly situated.
During the presidential election campaign President Rajapaksa pledged to release all military personnel who were imprisoned for what had happened during the war. He will want to keep his promise. The war was a failure of the entire system of government to which all parties and communities contributed. It was not the fault of one side alone. At the same time, to the extent possible, the government led by President Rajapaksa, who said he would be the president of all Sri Lankans, needs to ensure that the grief of the families of the missing is respected, and that they are looked after economically, and sustained emotionally, for the rest of their traumatized lives. Those whose loved ones went missing need to be consoled. They need to be shown compassion and solidarity. This may be the best that can be done at this time. One by one the wives and parents of those who went missing are dying of illness and old age without knowing the truth.