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II. Background

The armed conflict

In July 1983, an attack on government troops by the Liberation Tigers of Tamil Eelam (LTTE) sparked riots in Colombo and elsewhere causing several hundred Tamil deaths, now referred to as Black July. The ensuing civil war between the government and the LTTE has been marked by gross violations of international human rights and humanitarian law by both sides, and has claimed over 60,000 lives.

The LTTE, in its struggle for an independent Tamil state, has been responsible for untold human rights abuses. It has repeatedly targeted civilians in its military operations, and assassinated leaders and members of rival Tamil parties, journalists, and human rights activists. The LTTE has engaged in massacres, retaliatory killings, and “ethnic cleansing” of Sinhalese and Muslim villagers. Since the late 1980s, the LTTE has controlled significant areas of north and east Sri Lanka, collecting “taxes” and administering justice. It has imprisoned, tortured, and executed thousands of Tamil dissidents and their family members. In areas under its control the LTTE tolerates no freedom of expression, association, or assembly, and it has recruited thousands of children for use as soldiers, many of whom have died in combat.

Government security forces have likewise been responsible for numerous serious violations throughout the two decades of fighting. The Sri Lankan armed forces have carried out massacres of Tamil civilians and engaged in indiscriminate aerial and artillery bombardment of populated areas, including medical facilities and places of worship where civilians have taken refuge. Suspected sympathizers with the LTTE and other Tamil groups have been subject to mass arrests, prolonged detention without trial, torture, enforced disappearances, and extrajudicial executions. Government forces have displaced hundreds of thousands of Tamil civilians, often in an apparent attempt to deprive the LTTE of local support.

For 20 years the civil war was punctuated by large-scale and bloody military operations, short-lived ceasefires, and the 32-month presence in the late 1980s of an Indian Peace Keeping Force. In February 2002, under the auspices of the Norwegian government, the Sri Lankan government and the LTTE signed a ceasefire agreement (CFA).¹ The ceasefire brought a respite from hostilities, but not an end to serious abuses.

From February 1, 2002, through December 31, 2006, the Nordic-led Sri Lanka Monitoring Mission (SLMM), established to monitor compliance with the CFA, reported over 4,000 violations of the agreement. These included targeted killings and other acts of violence and intimidation against civilians, committed predominately by the LTTE.²

While the Sri Lankan government did not formally withdraw from the CFA until January 2008, full-fledged fighting between the government forces and the LTTE resumed in mid-2006. The LTTE launched unsuccessful attacks against government-controlled Mutur and Jaffna, and attacked Sri Lankan military bases and convoys in different parts of the country—from Palaly airbase in the north to Navy headquarters in southernmost Galle.

In 2006 through early 2007, the government concentrated its military offensive in the east, which was already considerably weakened after the cadre of the LTTE chief military commander there, V. Muralitharan (aka Colonel Karuna), split from the LTTE in March 2004 and began cooperating with government forces. Following large-scale military operations in the Trincomalee, Batticaloa, and Vakarai areas, the government claimed in March 2007 to have cleared the LTTE from the eastern coast.

The fighting is likely to continue. For the past 18 months, both parties have treated the ceasefire agreement as defunct, and the government, inspired by its military successes in the east, has made no secret of its intentions to proceed with a military offensive in the north. Clashes in the northern districts of Mannar and Vavuniya in the second half of 2007 have already inflicted heavy casualties on both sides.

The resumption of major military operations also triggered a new cycle of human rights abuses, including intentional and indiscriminate attacks on civilians, forced returns of internally displaced people, extrajudicial executions and “disappearances,” arbitrary arrests under draconian emergency laws, and recruitment of children as soldiers. The renewed conflict has also led to renewed government crackdown on dissenting voices, including political opponents, journalists, and human rights activists.³

History of “disappearances” in Sri Lanka

The large-scale enforced disappearances are not a new phenomenon in Sri Lanka. In the past, thousands of people have “disappeared” in the context of the two major civil conflicts that have wracked the country since independence: the insurgency led by the left-wing Sinhalese Janatha Vimukthi Peramuna (JVP) in 1987-90, and the two-decade long armed conflict between the LTTE and the government.

Presidential commissions established during the 1990s found that over 20,000 persons “disappeared” during these two conflicts. Some analysts and domestic human rights groups believe that the actual figure may be two to three times higher.⁴

Between 1983 and mid-1987, Amnesty International documented at least 680 cases of “disappearances” committed in the north and east in the context of the escalating armed conflict between the security forces and militant Tamil groups.⁵ Another 43 cases were reported to the organization from mid-1987 to 1989, when the Indian Peace Keeping Force (IPKF) was responsible for security in the north under the terms of the Indo-Sri Lanka Accord.⁶

In the south, from 1987 to 1989, the security forces “disappeared” and extrajudicially executed thousands of people while suppressing an armed insurgency within the majority Sinhalese community.⁷ Many of these abuses were perpetrated by plainclothes death squads which also regularly displayed mutilated bodies of the executed insurgents and their supporters in public.⁸

This brutal counter-insurgency campaign was then transferred to the east when the military returned there after the resumption of hostilities between the government and the LTTE in June 1990. The number of those reported to have been "disappeared" or deliberately killed in the custody of the Sri Lankan security forces reached thousands within months.

The majority of victims were young Tamil men suspected of belonging to or associating with the LTTE. Most of them “disappeared” after being detained in the course of cordon‑and‑search operations conducted by the army, often in conjunction with the police, and particularly the elite Special Task Force (STF).⁹

A new wave of “disappearances” engulfed the north in 1996-1997 after the army succeeded in regaining control of the Jaffna peninsula from the LTTE as a result of several large-scale military operations. The UN Working Group on Enforced and Involuntary Disappearances received reports of 622 new cases in 1996, and another 92 in 1997—the highest number of “disappearances” reported from any country in those years.¹⁰ Most of the victims “disappeared” after they were taken into custody during round-up operations or at military checkpoints set up throughout the peninsula.¹¹

In response to international criticism and public pressure, in the 1990s, successive Sri Lankan presidents set up commissions to investigate the countless “disappearances.”

The first Presidential Commission of Inquiry into the Involuntary Removal of Persons, set up by President Ranasinghe Premadasa in January 1991, was a specious exercise. Its mandate did not even cover the entire period of the JVP uprising when thousands of “disappearances” took place.¹²

In 1994 President Chandrika Kumaratunga set up three linked commissions of inquiry, each named a “Presidential Commission of Inquiry into Involuntary Removal or Disappearance of Persons,” to investigate abuses that occurred in different regions of the country from 1988 to 1994. The commissions began their work in January 1995.

Each commission, composed of three members, was assigned a specific geographical area of the country. After the commissions’ mandate expired, the government appointed a fourth commission of inquiry, known as the “All Island Presidential Commission on Disappearances,” to inquire into some 10,000 remaining complaints. This commission functioned from 1998 to 2000.

The four commissions analyzed tens of thousands of complaints and established that over 20,000 cases of “disappearances” had occurred, most at the hands of security forces.¹³

Upon completion of its work, the All Island Commission referred 16,305 complaints which it could not review (due to the limitations of its mandate) to the Sri Lankan Human Rights Commission. In 1994 the HRC started processing these complaints, and the commission’s Disappearances Data Base Project eventually identified 2,127 cases to be further investigated by the commission. In July 2006, however, the HRC reportedly decided not to pursue the investigations into these complaints “unless special directions are received from the Government.”¹⁴

Uncovering evidence of systematic state-sponsored violence, the three regional commissions identified suspected perpetrators in 1,681 cases, and the All Island Commission identified another several hundred individuals responsible for “disappearances.”¹⁵

These findings, however, led to few prosecutions and only a handful of convictions. According to the government, following the commissions’ recommendations, in 1997 a special “Disappearances Investigations Unit” was established under the deputy inspector general of the police, which by the end of 2000 had completed investigations into 1,175 of the 1,681 cases identified by the commissions. These cases were then transferred to the newly established “Missing Persons Commissions Unit” in the Attorney General’s Department to consider instituting criminal proceedings against the perpetrators. As a result, criminal proceedings were instituted against 597 members of the security forces.¹⁶ Very few of those cases, however, seem to have proceeded to trial, and only a few junior officers were convicted.¹⁷

While no independent commission was established to look into the “disappearances” committed in Jaffna in 1996, the Sri Lankan secretary of defense created a special Board of Investigation consisting of high-level officials of the armed forces and the police to examine these cases. Having investigated 2,621 complaints, the Board of Investigation concluded that 378 persons had “disappeared” in the Jaffna peninsula in 1996. It is unclear whether any members of the security forces were ever indicted based on the Board of Investigation’s findings—according to the government, the Disappearances Investigation Unit had not completed any investigations into these cases by the end of 2002;¹⁸ more recent information on these investigations is not available.

The only two noteworthy cases where the investigations into “disappearances” have led to prosecutions and convictions are the Embilipitiya killings and the murder of Krishanthi Kumaraswamy, described immediately below.

Following years of investigation into the 1989 abduction, torture, and murder of more than 50 high-school students in an army camp in Embilipitiya, nine suspects were brought to trial in 1994. In February 1999, five military personnel, including the local brigadier, as well as the principal of the high school, were convicted of abduction with the intent to commit murder and wrongful confinement and sentenced to 10 years in prison.¹⁹ The brigadier was later acquitted on appeal for lack of direct involvement.

In the other case, nine soldiers were arrested for the 1996 abduction and murder of an 18-year-old Tamil student, Krishanthi Kumaraswamy, and her mother, brother, and a friend in Jaffna. In 1998 five of the soldiers were convicted and sentenced to death.

The five convicted soldiers revealed the existence of mass graves in the town of Chemmani, which allegedly contained the bodies of up to 400 persons “disappeared” and killed by security forces in 1996, when government troops recaptured the Jaffna peninsula from the LTTE.²⁰ Subsequent investigations initially fed hopes that this would be a first significant step toward ending impunity for “disappearances.” Ultimately, however, only 15 bodies were discovered because of “unfinished exhumations, inconclusive DNA tests, and political resistance.”²¹ Initial arrests of several members of the security forces led to no indictments, and by early 2006 the investigation had come to a standstill.²²

As the above description makes clear, the work of the various commissions of inquiry and the investigative bodies ultimately failed to bring about a meaningful accountability process.

The commissions did make detailed recommendations for legal and institutional reforms to prevent “disappearances” in the future. Most of these, however, were either completely ignored by successive governments, or were introduced only on paper, with no genuine effort made to implement them.²³ For example, the commissions determined that the Emergency Regulations created a legal framework conducive to “disappearances,” and called for “the utilization of the powers under the Emergency Regulations [to] be minimized.”²⁴ However, as this report shows, the current government has continued to rely heavily on emergency laws, which remove basic constitutional safeguards and grant sweeping powers to the security forces.

One important step taken by the Kumaratunga administration in pursuance of the commissions’ recommendations was the simplification of the system for paying compensation and issuing death certificates to the families of the “disappeared.” On the basis of new legislation, some 15,000 death certificates were issued between 1995 and 1999, ²⁵ and by 2002, compensation had been paid to families of 16,324 victims.²⁶

However, the 2006 decision of the HRC to drop the investigation into the 2,127 complaints of “disappearances” in its database was reportedly due to HRC concerns that “the findings will result in payment of compensation” to the families, suggesting that the one area in which progress was being made—compensation—actually may have led to the curtailment of essential investigations. The decision also casts doubt on the extent to which the government would be willing to pay compensation in the future.²⁷

In the 1990s the large-scale pattern of “disappearances” in Sri Lanka was repeatedly addressed by the UN Working Group on Enforced and Involuntary Disappearances. The UN Working Group undertook field missions to the country in 1991, 1992, and 1999. Between 1980, when the UN Working Group was established, and 2006, the Working Group transmitted 12,319 cases to the government—of those, 5,749 cases remain outstanding.²⁸

Following its visits to Sri Lanka, the UN Working Group made a number of recommendations to the government for the prevention and proper investigation of “disappearances.” However, many key recommendations have not been implemented. For example, the Prevention of Terrorism Act and the Emergency Regulations have not been abolished or brought into line with internationally accepted human rights standards; the central register of detainees has not been set up; and enforced disappearance has not been made an independent offence under the criminal law. Nor did the government, as urged by the UN Working Group, establish an independent body with power to investigate all cases of “disappearance” since 1995, or accelerate its efforts to bring the perpetrators to justice.

During its visit to Sri Lanka in 1999, the UN Working Group expressed its serious concern about the lack of progress in investigations and prosecutions, and the government’s failure to implement many of the Working Group’s recommendations.²⁹ The failure of successive Sri Lankan governments to seriously consider and implement the recommendations of the national commissions of inquiry and the UN Working Group has considerably contributed to the current crisis.