Investigating Truth re Enforced Disappearances

Investigating The Truth Of What Happened To Enforced Disappeared Tamils In Sri Lanka

International Day of the Victims of Enforced Disappearances, August 30, 2019 – TGTE’s Call for International Action

The necessity for international action, to investigate what happened to enforced disappeared Tamils in Sri Lanka, has become that much greater and more urgent now.

This article sets out TGTE’s call for ‘International Action’ and why the time for action is now. It also examines TGTE’s loss of faith in the UN Human Rights Council (the Council) and its commitment to pursue its latest “Victim Driven International Justice” (VDIJ) initiative. In announcing the launching of VDIJ, its latest initiative, the TGTE has vowed to pursue every possible avenue under international law for the sake of Tamil victims:

“While it remains incumbent on the international community to do its duty, today, for the sake of Tamil victims around the world and for the sake of all victims who are denied justice, we will pursue every possible avenue under international law to obtain justice ourselves with this Victim Driven International Justice initiative,” the TGTE affirms.

This is all about what caring individuals and institutions must take note of – those looking to a fair, just, humane and inclusive world on this International Day of the Victims of Enforced Disappearances.

TGTE’s call for International Action

The Transnational Government of Tamil Eelam (TGTE) and the ‘Committee for International Action in Canada’ in its awareness campaign asks that the world stands with families desperate to know the whereabouts of their loved ones still missing in the island of Sri Lanka – those who were alive when they were forced to hand them to the custody of Sri Lanka’s armed forces at the end of the war on the assurance they would be safe; those who surrendered; those who were abducted in “white vans” and disappeared.

The need for action is now says the TGTE – the TGTE Minister for International Affairs, Manicka Vasagar, states the absolute fact that, “loved ones of the victims have waited too long for the truth, and some have passed away, without knowing their whereabouts.”

There is now an urgency for international action,” the Minister said, reiterating TGTE’s clarion call to action to refer Sri Lanka to the International Criminal Court (ICC) for the mass atrocities that took place in Mullivaikkaal and before including enforced disappearances. The TGTE is essentially a political formation of democratically elected members, living outside Sri Lanka, dedicated to securing justice and freedom for the Tamil people in the North and East of the island in the Tamil homeland.

World Leaders, the United Nations, the UN Human Rights Council, Politicians, Civil Society, Academia and members of the global community of people must hear this.

The TGTE wants everyone, “to come together in solidarity to expose the abject failure of successive Sri Lankan governments to provide families, searching for their loved ones with satisfactory answers, highlighting the need for international action to ensure an international independent investigation is conducted, to seek the truth of what happened to enforced disappeared Tamils in Sri Lanka.”

The pamphlet being distributed in Canada by the TGTE for ‘International Action’ underscores the need for closure: Undeniably families yearning to find their loved ones for more than 10 years need closure. “Having had no answers from the government of Sri Lanka, families have taken their protest to road sides in the districts of Vavuniya, Kilinochchi, Jaffna, Mannar, Mullaitivu, Trincomalee, Ampara and Batticaloa in the Tamil homeland and would have done so for nearly 1000 days (about 905) on August 30. They’re demanding to know the fate of their loved ones, all of them Tamils. Sadly so far, at the least, 35 mothers and fathers have died pining for their enforced disappeared sons and daughters without getting any recourse. It’s for everyone to raise your voice to help draw attention to their plight,” the appeal stresses.

Towards this end the TGTE is asking the International Community to, “hear the cries of these families, mostly mothers, wives, fathers and children of victims, who, relentless in their appeals for international action, have vowed not to give up their search for their enforced disappeared loved ones.”

Significant and substantial action has got to be taken without delay to unravel the truth of Tamils disappeared by the Sri Lankan State. In its pamphlet, the TGTE highlights the need, “to ease the pain and suffering of these families in their struggle for justice.” Addressing the global community the TGTE opines how “critical” and “immense” each ones contribution would become in total, making the required impact on decision makers, facilitating a favourable outcome in the end.

“These families, especially women and mothers, have shown incredible strength and courage, agitating fearlessly and tirelessly, amidst intimidation and harassment – despite ongoing surveillance operations they have to contend with, in the heavily militarized zone of the North and East of the island in the Tamil homeland, Tamil Eelam,” the pamphlet reiterates.

“It falls on each one of us to ask the international community to intervene by insisting on the need for an international investigation into these enforced disappearance cases. While the ‘International Convention for the Protection of all Persons from Enforced Disappearance’ (the Convention) states the widespread or systematic practice of enforced disappearance constitutes a crime against humanity, it must also undoubtedly be seen as Tamils all over the world including victim’s families see it – as practice emblematic of acts constituting Genocide, perpetrated against the Tamil people by the Sri Lankan state,” the pamphlet states.

Follow Canada’s lead the pamphlet implores. The TGTE, referring to the motion the Parliament of Canada passed, “calling for an international investigation into allegations of genocide committed against Tamils in Sri Lanka,” asks everyone to persuade other countries to follow Canada’s lead.

“Please persuade those who have the power and ability in the world to make a meaningful difference, to follow the lead of the House of Commons of Canada which, by unanimous consent, called for, an international independent investigation into allegations of Genocide against Tamils committed in Sri Lanka including in the last phase of the armed conflict in Sri Lanka,” the pamphlet pleads.

In its appeal for international action the TGTE has argued the case for urgency.  “The Time for International Action is Now,” says the pamphlet and here we give, in its entirety, its arguments why:

The Time for International Action is NOW and Why

  1. It’s reasonable to question why the President of Sri Lanka, Maithripala Sirisena has not released the promised list of persons who were entrusted to the armed forces of Sri Lanka.
  2. The claim made by the Prime Minister of Sri Lanka, Ranil Wickremesinghe that,” they are all probably dead,” can’t be overlooked without demanding clear evidence to support his alarming admission.
  3. When the number of cases that remain unresolved is staggering and when the UN Working Group on Enforced Disappearances, in its 2016 report, named Sri Lanka as having, “at the world level, the second largest number of enforced disappearance cases,” it would be undesirable to leave Sri Lanka to its own devises.
  4. The truth about ‘secret detention centres’, the existence of which has been confirmed by the UN has to be unraveled. The UN Working Group, “heard consistent and reliable accounts of people who had disappeared after surrendering to the army.”
  5. The time has come to investigate all other enforced disappearance cases, that the UN Working Group on Enforced Disappearances has listed (the victims of whom are mostly Tamil) which include, ‘white van’ disappearances, disappearances in the context of anti-terrorism operations, disappearance conducted for ransom or economic extortion or a combination of all three,” as well as those that occurred during the 30 year war successive Sri Lankan governments waged against the Liberation Tigers of Tamil Eelam (LTTE), who fought to achieve self-determination for the Tamil people in their homeland in the North and East of the island.
  6. The discovery of “mass graves’ – those uncovered in Mannar and Matale and other places in the island – which the UN Working Group had, “clear problems with – in the way that the sites had been secured and the samples and evidence handled,” is disconcerting, more so when considering forensic examination of the war zone has never been undertaken.
  7. Although Sri Lanka ratified the International Convention for the Protection of All Persons from Enforced Disappearances on May 25, 2016, and, under pressure, enacted its own national legislation, its Foreign Affairs Minister, Tilak Marapana, introducing the Bill in March 2018 reiterated nothing in the Bill was retrospective and that its content applies only to offences committed in the future, not for past cases – illustrating Sri Lanka’s disingenuous approach to complying with its obligations. The Act clearly does not apply to the vast number of enforced disappearance cases prior to the Act. This is not what was envisaged by UNHRC resolutions Sri Lanka co-sponsored and comes as a slap in the face to families of Tamils disappeared by the Sri Lankan state before the Act came into force. Also the Minister clarified the Act, does not, “allow for a foreign state to try a Sri Lankan found to have committed an offense in a court of law in that respective state.”
  8. Unless and until international action is taken, victim’s families would have no hope of redress. Families, most having testified to the now redundant ‘Lessons Learned and Reconciliation Commission’ and the ‘Paranagama Commission’, who have no faith in the Office of Missing Persons (OMP) created by Sri Lanka, have categorically stated they would not rely on it to find their loved ones, least of all to bring to justice the perpetrators, which unfortunately, the OMP is not mandated to do – in violation of the Convention which provides that: Each State Party shall take the necessary measures to hold criminally responsible at least any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance.
  9. Furthermore, at present, so long as Sri Lanka refuses, under articles 31 of the Convention, to allow, “the Committee on Enforced Disappearances (the Committee) to receive and consider communications from or on behalf of individuals claiming to be victims of a violation of provisions of this Convention,” families are unable to bring complaints directly to the Committee. This is an injustice that cannot be left to persist.
  10. There’s still an avenue opened under article 32 of the Convention, to refer Sri Lanka to the Committee which State Parties can pursue. Sri Lanka upon ratification has declared, “it recognizes the competence of the Committee to receive and consider communications in which a State Party claims another State Party is not fulfilling its obligations under the Convention.”
  11. The time is now – to stop relying on Sri Lanka, known for its perverse culture of impunity, to deliver on its ‘Transitional Justice’ obligations under the many UN Human Rights Council resolutions it co-sponsored. Sri Lanka, has to date, failed to implement major provisions of its commitments – including the abolition of the draconian ’Prevention of Terrorism Act’ (the UN Working Group found the PTA facilitated occurrences of enforced disappearances), – and the creation of a judicial accountability mechanism in the form of a “hybrid court” with foreign judges, prosecutors and investigators, despite the many extensions it’s been given. It’s highly unlikely Sri Lanka would carry out its obligations, no matter which government is in power. Sri Lanka’s leaders have said they would neither prosecute their soldiers nor allow foreign judges, prosecutors or investigators in a domestic mechanism that’s not going to materialise.
  12. Further, with the recent appointment of Shavendra Silva as Sri Lanka’s army commander, himself an alleged war criminal and genocidaire, by President Sirisena, the possibility of bringing any alleged perpetrators of mass atrocities against Tamils including war crimes, crimes against humanity enforced disappearances and genocide, before an independent domestic court in Sri Lanka, is nil.
  13. With Shavendra Silva as army commander, justice for Tamils through a domestic mechanism is a non-starter. He as the commander of the 58th division played a major role in the war Sri Lanka waged against the LTTE. He together with Gotabaya Rajapaksa, the former Defense Secretary who oversaw the war, along with others, were responsible for knowingly bombing and shelling Tamil civilians and for arresting, torturing and executing Tamils as well as causing them to be disappeared including LTTE carders. There’s a very real prospect Gotabaya Rajapaksa who also abducted, killed, disappeared Tamils in “white vans” could become Sri Lanka’s president at the end of this year.

These (and many more) are indeed very real and legitimate concerns that underscore the necessity for international action:

TGTE’s Signature Campaign for “ICC Referral”’ and the “You Are Not Forgotten” Campaign

The TGTE as you know has collected 1.6 million signatures in its campaign to refer Sri Lanka to the ICC to investigate and prosecute those senior political and military leaders responsible for mass atrocity crimes including genocide. Here’s my article, “A Million People and Counting Want Sri Lanka Referred to the ICC – written in 2015 when the signatures had reached a million.

The TGTE has also launched the “you are not forgotten” website that requests relatives, friends and family members of victims of enforced disappearances to register the fact of their disappearance with details.

Additionally the TGTE, through its most recent initiative – ‘Victim Driven International Justice’ – is looking to pursue other avenues and mechanism more vigorously, hoping for some progress in securing justice for victims – this being critical at the time we are in.

Examining TGTE’s Loss of Faith in the UN Human Rights Council

The TGTE in its press release, announcing the VDIJ initiative, regrets the fact that, that “steps” have still not been taken to investigate or prosecute those responsible for some of the worst crimes committed this century,“ despite the involvement of the international community from the very first day the armed conflict ended, and ten years have passed,” since then.  The TGTE argues that, “Over 90 UN member states have provisions in their laws for private prosecutions by victims,” and commits to working with and supporting Tamil victims living in those countries and human rights organizations working on their behalf to commence domestic prosecutions for international crimes with universal jurisdiction.

Expressing disappointment in the Council the TGTE states that, “on 22 March 2019, when the UNHRC passed its latest resolution on Sri Lanka (A/HRC/40/L.1), it makes no mention of Sri Lanka’s complete failure to investigate the atrocity crimes committed against Tamil victims and UN employees.”

The TGTE does not hide the fact that it is frustrated by the Council’s indifference, inaction, complacency and apathy – referring to the UN High Commissioner for Human Rights and her assessment that’s been ignored by the Council. The High Commissioner had opined that, “Since 2015, virtually no progress has been made in investigating or prosecuting domestically the large number of allegations of war crimes or crimes against humanity collected by OHCHR in its investigation, and particularly those relating to military operations at the end of the war.”

Despite reports from UN mandate holders and Rapporteurs pointing out Sri Lanka’s failure to comply with most of it commitments, the Council’s actions have given little hope to victims.

A group of UN experts led by the Special Rapporteur on Truth, Justice Reparations and Guarantees of Non-Recurrence, Fabian Salvioli, who visited Sri Lanka recently and who’s report will be released at the Council’s 42nd session this September, “has called Shavendra Silva’s appointment as Army Commander, an affront to the victims and a harrowing sign of the perpetuation of impunity which risks undermining the trust of Sri Lankan society on state institutions and fuelling further destabilization.”

“The experts recalled that the Government of Sri Lanka had voluntarily committed to provide accountability for all serious human rights violations and abuses committed during the war, as reflected in UNHRC resolution 30/1.”

It’s no surprise the sentiments expressed by the UN officials mirrored TGTE’s concerns: Having, “Expressed serious concern at the lack of progress in investigating and prosecuting these crimes, and in reforming the country’s security sector despite the serious allegations against some of its members,” the communiqué recommended the international community explore other options:

“If Sri Lanka is unwilling and unable to investigate these and other allegations the international community must explore other ways to achieve accountability including universal jurisdiction principles, said the experts referring to the process which enables war crimes to be prosecuted in a court of any country regardless of where the crimes were committed,” the communiqué dated 27, August further stated.

Words that Should Spur People to Act

The words below coming from TGTE, given here in full, should give rise to serious reflection – words that should prick the conscience of people and spur them to act – those persons that are committed to preventing another genocide from happening.

“The Council, in resolution 40/L.1 continues to ignore the recommendation that the crimes committed in Sri Lanka require an internationalized tribunal; sets no time-line for Sri Lanka to ensure accountability; and adjourned any further discussion of Sri Lanka’s failure to fulfill its obligations under A/HRC/30/1 until 2021.

Sadly, the Council’s apathy to the continued suffering of victims and their families is not unique to Sri Lanka. We have entered a new era of international relations where atrocities in Sri Lanka, Syria and Myanmar are not met with the firm resolve demonstrated in Nuremberg, Yugoslavia, Rwanda and Sierra Leone. 

Instead, the international community has become complacent – it has forgotten its collective promise that a genocide would not happen again. Its feigned outrage at atrocity crimes now dissipates quickly and without embarrassment. International investigations and prosecutions of the killing of over 7,000 men and boys in Srebrenica in July 1995 began immediately. The first step towards accountability has yet to be taken with respect to the 40,000 to 70,000 civilians killed in Sri Lanka a decade later.

The international community has forgotten the warning Justice Robert Jackson, the Chief Prosecutor gave in his opening statement at Nuremberg explaining why justice for atrocity crimes must be undertaken no matter what the cost or how politically difficult: “civilization cannot tolerate their [atrocity crimes] being ignored, because it cannot survive them being repeated.”

TGTE’s ‘Victim Driven International Justice’ Project

The TGTE for its part is committed to bringing closure to relatives and family members of victims of enforced disappeared Tamils.  And therefore in its most recent initiative, the TGTE is asking the High Commissioner for Human Rights, pursuant to fundamental human rights, (and principles of transitional justice), namely the ‘Right to Truth and “Right to Know” to make available evidence from UN’s three comprehensive reports to help victims and families obtain justice through TGTE’s Victim Driven International Justice (VDIJ) initiative, invoking universal jurisdiction.  To further strengthen its request to the High Commissioner, Michelle Bachelet, TGTE is asking families of enforced disappeared Tamils to complete a form requesting access to information and evidence currently in the possession of the Office of the High Commissioner for Human Rights (OHCHR), regarding the disappearance and or killing of their dear ones. Professor Dermot Groome, who led the prosecutions of Ratco Mladic and Slobodan Milosevic would be guiding TGTE’s VDIJ initiative as it moves forward.

“The necessity for international action to investigate what happened to enforced disappeared Tamils in Sri Lanka, with the utmost urgency cannot be overemphasized,” the TGTE asserts. International action, “for justice for victims would make the families feel that people care, that they are not alone, giving them the comfort and solace that they deserve at these dangerous times, in the island of Sri Lanka.” This TGTE hopes, will resonate with everyone and spur people into meaningful action.


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