Collateral Damage As Sri Lanka Delays the Transitional Justice Process

COLOMBO: The International Women of Courage award to Sandya Ekneligoda by the US government, and presented to her by First Lady Melina Trump, was a symbolic affirmation that the fate of victims of enforced disappearances is an international priority that will not be negated by either time or official denials. Sandya Ekneligoda’s husband, Prageeth, a journalist, disappeared in 2010 just a few days before the presidential election that saw President Mahinda Rajapaksa win a second term of office.

Prageeth backed the opposition. When he went missing many motives were attributed to it, including going to France, working with the LTTE and gathering evidence of financial crimes of government leaders. But whatever the motivations of those who made Prageeth go missing, his enforced disappearance like those of thousands of others is a heinous crime. It is an international crime that all countries of the world are duty bound to prosecute by virtue of the international covenants they have signed.

Despite the change of government in 2015, the investigations into the disappearance of Prageeth, and others who went missing, have been proceeding slowly and in fits and starts. There have been innumerable instances of ground level harassment of Sandya and others in similar positions who are seeking the whereabouts of their missing family members.

Today there are at least 24,000 families in Sri Lanka who have individually and personally suffered from having their family members go missing which was the number of complaints lodged with the Missing Persons Commission which wound up in August last year. These are the numbers who availed themselves of the opportunity to complain to the government commission on missing persons. Although the commission gathered evidence for over three years, it did not disclose the whereabouts of any of the missing persons and their eventual fate. Unlike Sandya, the vast majority of the victims came from the North and East of the country.

In August 2016, the government pushed through a bill in parliament that sought to set up an Office of Missing Persons. This was meant to be a permanent body unlike ad hoc and short lived government commissions of inquiry. In passing this law, the government was delivering on one of the several promises it had made in Geneva at the forum of the UN Human Rights Council where it had co-sponsored a resolution on Sri Lanka.

This was in October 2015, where the government, having renegotiated the text of the resolution, was able to defuse the crisis that the former government was threatening to immerse itself at the time of its election defeat. The government changed from the previous confrontational approach, that saw Sri Lanka become akin to an international outcaste, and defeated in votes on three successive occasions at the UNHRC. Thereby it averted a system of internationally mandated political and economic sanctions would have put the country into a severe crisis.

The opposition is today criticizing the government for having co-sponsored the UNHRC resolution of October 2025 and for having co-sponsored the follow up resolution of March 2017 which gave the government another two years to implement the promises it had made.

It is because the government agreed to co-sponsor these resolutions that it was able to moderate the terms of the resolution. If it had opposed these resolutions totally, as did the former government headed by President Rajapaksa, there is no doubt that the international community would have imposed sanctions upon Sri Lanka.

The international community might also have decided to become the implementer, both in terms of investigations and in terms of sitting as judge and prosecutor in international tribunals. By way of contrast because Sri Lanka accommodated the demands of the international community, and co-sponsored the two resolutions, it was able to moderate them. Sri Lanka is to be the implementer, and appoint the judge and prosecutor, which is why the Tamil polity and international human rights organizations have registered their protests.

The fate of General Chagi Gallage who was denied a visa to Australia to visit his family is an illustration of what might have happened to Sri Lanka on a larger scale if the path of confrontation with the international community had been taken. General Gallage has found himself at the receiving end of punitive action by a single country. The decision to deny him a visa was not a decision of the entire international community, which might have been the case if the government had continued on the course of confrontation with the international community as advocated by the opposition.

If Sri Lanka had decided to oppose the resolution of the UNHRC in October 2015 that resolution would have included a recommendation for political and economic sanctions. The call for implementation of these sanctions would have been taken on by a larger group of countries.

A few days after General Gallage was denied his Australian visa I had occasion to meet with senior military officers at an academic programme on peace and conflict studies. They expressed their deep unhappiness at the treatment meted out to General Gallage whom they saw as a professional soldier of a high caliber. They saw him as having done his job as part of the security forces of the Sri Lankan state that defeated the LTTE and thereby protected the unity and sovereignty of the country. They questioned why he had been punished by the Australian authorities on the basis of still unverified charges of being complicit in human rights violations on the battlefield.

It was clear that these soldiers were also concerned about their own fates in the future. They felt that the government had a duty to defend them to the utmost as they had done what they did to protect the state. They agreed that specific incidents could be investigated, but they saw the present human rights campaign as being directed against the security forces as a whole.

Due to the goodwill that the present government has developed with the international community the government has been given another two years to deliver on the promises it made in October 2015 and has failed to deliver on till now. Even the Office of Missing Persons is not established and is not functioning. As a result thousands of families, and tens of thousands of individuals, continue to live in uncertainty about the fate of their loved ones, and lacking all conviction in the genuineness of the government to find out what happened to them.

Even if the Office of Missing Persons is set up, finding the missing persons will be a slow process. In Kosovo, where there are about 30,000 remaining cases of missing persons, only about one hundred cases are solved each year despite all the international assistance that is being made available. However, if the Office of Missing Persons is set up, it will be a signal to those who continue the search for their missing loved ones that the government is serious about dealing with the problem.

The examples of Sandya Ekneligoda and Chagi Gallage show that the international community is serious about wanting Sri Lanka to deliver on its promises. In recognizing Sandya Ekneligoda’s suffering, and her work in pursuing the truth about what happened to her husband, the international community is demonstrating its support for those who seek truth and justice.

Unless the truth seeking and accountability processes move forward in Sri Lanka there will be actions taken against Sri Lanka and those associated with the war will be liable to punitive actions by individual countries. A credible truth seeking and accountability process is a way in which to clear the names of the security forces who did not violate the laws of war or commit the massive human rights violations they are accused of. Those who seek to block the truth seeking and accountability process are endangering the rights of those who fought the war professionally.

The soldiers who met me spoke of one of the last battles where the security forces breached the last LTTE trench, and entered into an area filled with civilians. They did not fire on them and 24 of the crack soldiers who led the offensive died when the LTTE shot at them from the midst of the civilians.

The way forward for the government is to establish the reconciliation mechanisms it promised the international community, especially the truth seeking mechanisms. All sides of the truth must come out, and the time line needs to be extended beyond the last phase of the war, to include the accounts of the soldiers, those who had their loved ones abducted or go missing after they were handed over by them to government custody, and those who suffered massacres at the hands of the Sri Lankan security forces, the LTTE, the homeguards and paramilitary forces and also the Indian army when their peacekeeping mission failed.

There also needs to be a countrywide dialogue and debate about how best to deal with the past so that it will not recur and about what the transitional justice process really means. One of requests of the soldiers who spoke to me was that the government leaders should engage with them in serious and long discussions about what the country’s commitments in Geneva to the UNHRC are all about. Everyone in the country, the victims of the war as well as the soldiers who fought in the war need to be reassured that the Sri Lankan state cares for them.

The government, it appears is prioritizing economic development, and is devoting its efforts to bring tangible things into the hands of people. It is devoting its best and focused efforts to grow the economy. Dealing with the past and healing the wounds of war is no less important.

(Jehan Perera, alumni of Harvard Law School, is Executive Director at the National Peace Council of Sri Lanka)