The Duraiappa stadium mass grave was unearthed in stages between April 4 and 10 of 1999.
- The first and the most critical issue at present is the lack of involvement of families of the disappeared in the exhumation processes
- Critics point out that it is very sad that the government has so far not collected ante mortem data ever
- The most important factor negatively impacting exhumations so far is the political interference
On a dark day in 1983 *Rajeshwari from Jaffna saw her husband for the last time in her life. But even after that day she has been wearing a pottu with hopes that he would return one day. Forty years later, this pottu has become a burden on her life. She doesn’t see any purpose in wearing this pottu anymore, but she anticipates that her husband would return one day. Such is the plight of many widows, children and individuals who lost their loved ones during the 30-year ethnic conflict and political insurgencies that took place in Sri Lanka. Even though the war concluded and Sri Lanka has achieved peace from a literal point of view, many issues remain unsolved. One of these is the high number of mass graves that has been discovered across the island. A recent report titled ‘Mass graves in Sri Lanka: History and Legal Framework’ by Sophie Bisping, reveals the discovery of 32 mass grave sites between 1992 and 2022.
Revealing the darker reality
The report was published following the release of ‘In Plain Sight’ a 30-minute documentary directed by Ruvin De Silva which underscores the complexity of the issue of mass graves and failed exhumations in Sri Lanka. The report further indicates that out of the 32 graves that have been listed only seven have been excavated so far. These include the grave sites in Sooriyakanda, Chemmani, Jaffna, Matale, Kalavanchikudy and two sites in Mannar. For years, people in the North, East and even the South have been questioning successive governments for answers regarding the disappearances of their loved ones. It is often suspected that some of the victims in mass graves were persons who had been subjected to forced disappearances. Sri Lanka has the world’s second highest number of cases registered with the United Nations Working Group on Enforced or Involuntary Disappearances. It has been estimated that between 60,000 and 100,000 people were subject to enforced disappearances since the beginning of the war in 1983.
The documentary highlights how the mass graves that have been identified remain without any memorials to remember those who were buried. Many of these mass graves were discovered by construction workers who were hired to either lay water pipes or put up constructions.
“The families of the disappeared were reluctant to speak out in the open due to the political environment at the time. They were afraid to speak against the Army and they feared a threat to life and a fear of not being able to claim compensation. It was in this backdrop that the 78 affidavits were produced before the magistrate”
- Upul Kumarapperuma Attorney-at-Law
Sri Lanka’s obligations
However, the knowledge of these sites and of the laws that pertain to their discovery, investigation and commemoration is sparse and scattered. “We need to be aware of Sri Lanka’s obligation as a state dealing with mass graves,” said Attorney-at-Law K. S Ratnavel. “International human rights laws, humanitarian laws and the international penal law have over the years, set out the rights of the families of the disappeared and obligations of the state to treat remains with respect, establish the truth about what happened, investigate who was responsible for the crimes committed and bring them to justice. This also includes memorializing the grave sites and those who were buried there and providing reparations to the families.”
The Minnesota Protocol developed by the UN is a detailed manual for the prevention and investigation of extrajudicial and unlawful killings. “It has a lot of details on how states should handle exhumations. The Minnesota Protocol was derived in 1983 in Philippines. At the time there were no guidelines or regulations regarding these unlawful killings. Thereafter there is what is known as the ‘Bournemouth Protocol’ developed by the International Commission of Missing Persons (ICMP) based in Bournemouth University in the UK,” said Ratnavel.
Inadequate legal and policy frameworks
Ratnavel claims that the Sri Lankan standards, the legal and policy frameworks with regards to exhumations and related investigations are inadequate. “When we talk about inadequacies the Sri Lankan law does not provide for procedures in respect of exhumations and enforced disappearances. Recently when the Mannar mass graves proceedings were taken up in courts the Attorney General who appeared in the case representing the CID and other state authorities treated these proceedings as proceedings of an inquest or an incident of an ordinary nature. When he first pointed out that it was inadequate and inappropriate there was a court order saying that the lawyers cannot represent the families in the legal proceedings. But later on, the right of the lawyers to represent the families has now been recognized,” said Ratnavel.
Since 2015 there have been various efforts to amend the current laws, but none of them have borne fruit. Legal experts however observe some useful provisions in the Office on Missing Persons Act in respect of mass graves. These include provision to observe exhumations. “But the officers’ involvement has been limited to observing, advising the magistrate and using his budget to facilitate and allow for samples to be examined abroad. The families of the disappeared have become very skeptical about the OMP. There is also a problematic section 32 in the OMP Act which says that the findings of OMP investigations cannot give rise to any criminal or civil liability. The way the OMP has responded to our request for information about mass graves under the RTI by not answering our questions is a sign of how problematic it has become,” Ratnavel further claimed.
Ratnavel further said that it is significant that the OMP under the leadership of Saliya Pieris made possible contributions to the crucial aspect of exhumations in the Mannar mass graves by funding the day-to-day activities. “On a positive note there were efforts to bring about a new inquest act and standard operating procedures for exhumations. So far we have not been consulted on either. It is important that we get these new laws right and that can only be done with full transparency and in consultation with each stakeholder including the families of the disappeared. Any forensic expert will agree that the problems in the legal and policy framework have also resulted in many practical problems from their perspectives such as the lack of coordination and streamlining, facilitation of different forensic reports which don’t always fully agree or they don’t reproduce because the forensic team has disagreed. This can lead the magistrate to struggle in making sense and sometimes slow down investigations and bring things to a halt as we have seen in Matale,” said Ratnavel.
“International human rights laws, humanitarian laws and the international penal law have over the years, set out the rights of the families of the disappeared and obligations of the state to treat remains with respect, establish the truth about what happened, ”
- K. S Ratnavel Attorney-at-Law
Participation of families
The report identifies eight areas of failure. The first and the most critical one is the lack of involvement of families of the disappeared in the exhumation processes at present. The report has an annex with summaries of 20 exhumations conducted to date including one in Kalavanchikudy where the magistrate has opened the case but no exhumations have actually happened so far despite 10 years since the case was registered. “It is very sad that the government has so far not collected ante mortem data ever. Without such ante mortem data it is very difficult, if not impossible to identify the remains and return them to their families. In a few cases where remains were identified based on clothing or artifacts found on the site, even in these cases the remains have not been returned to the families and indeed lawyers have been barred from being present during exhumations,” he said.
The families in the area around exhumations who have had hopes of getting the bodies of the disappeared relatives returned have their hopes dashed. They have been ignored and not have any support to speak of. The good practice is for liaison officers to be appointed to support families at all stages of the exhumation process and also to assist with psycho social support.
Role of Attorney General’s office
He further shed light on the negative role played by the Attorney General’s office. Even though the initial phases of the investigations looked promising, the absence of the Attorney General’s office counsels was identified as obstructions to certain cases. There is a strong conclusion in our analysis regarding the negative role of the attorney general’s office. “In the Chemmani case four of the nine suspects were released and subsequently acquitted. The Presidential Commission on Enforced Disappearances recommended the establishment of an independent public prosecutor authority in its final report made public in 2002. Over 20 years later, the recommendations and many others by the Commission remains unimplemented. The UN has also repeatedly made the same recommendations only to be ignored,” he added.
Other factors resulting in failures
The most important factor negatively impacting exhumations so far is the political interference. Ratnavel referred to Matale exhumations and how former President Mahinda Rajapaksa appointed a Commission of inquiry that sidelined the magisterial inquiry. “Thereafter, samples were sent to the USA which came back as dating back to the 1950s. Even though the local forensic archeologists had concluded that they dated from late 1980s period for example theJVP insurrection period when Gotabaya Rajapaksa was in charge of Matale district as the commander of an army camp. The investigation of Kalavanchikudy site in Batticaloa district in 2014 was initially rushed on the assumption that the remains concerned were victims of the LTTE. Then investigations stalled some day after the state came to realise that the investigations on this particular mass grave implicated Karuna Amman who in 2004 had switched sides from LTTE to join the Mahinda Rajapaksa regime. We have also seen that exhumation sites are not always well-protected.
“For instance in Mannar even though it is likely that there are more bodies to exhume the Police is no longer there and we are worried that the site would be tampered with. There is also a habit of magistrates and sometimes forensic experts to be transferred at critical points during the investigations and exhumations. In Mannar, no less than seven magistrates have been involved in hearing the case and cases are also being transferred to Colombo making it difficult for families and witnesses to attend the hearings. This happened in the Chemmani case. Any forensic experts would agree that there is lack of technical know-how very closely linked to the lack of resources allocated to forensic expertise in Sri Lanka. Though the all island commission recommended the establishment of the human identification centre to train scientists on DNA profiling, computerized facial reconstruction and recognition, video superimposition and analysis this has not been setup,” he said.
The 78 sworn affidavits
Adding his experiences Attorney-at-Law Upul Kumarapperuma said that the Criminal Investigation Department was not able to find any information regarding people in these mass graves between 2011 and 2015. “This is politics. During the exhumation of the Matale mass grave around 160 skeletal remains were recovered. There were around 4-5 army camps setup in Matale between 1988 until the early 1990s. With the recovery of skeletal remains the families of the disappeared in the area had suspicions whether these remains belonged to their relatives and loved ones. Prof. Raj Somadeva had then provided a report to then Judicial Medical Officer Asoka Jayasena which claimed that these remains were buried after 1987. I produced 78 sworn affidavits to the magistrate court and some of the contents were quite clear. Some affidavits mention where the loved ones or relatives went missing. One affidavit mentions the detention centers where people who went missing were detained for some time. Another affidavit mentioned how an individual from Dambulla was detained in Matale and how his wife had gotten a letter signed from him at the Army camp. Thereafter all these people have gone missing.”
But when the case was recalled for hearing back in 2012 many lawyers and families of the disappeared had shown a reluctance to support the case. “This is because by 2012 the war had ended and some army officers had become national heroes. But the fact is that they were stationed in Matale during the 1988-1989 period. The families of the disappeared were reluctant to speak out in the open due to the political environment at the time. They were afraid to speak against the Army and they feared a threat to life and a fear of not being able to claim compensation. It was in this backdrop that the 78 affidavits were produced before the magistrate and were produced as per Section 138 of the Code of Criminal Procedure Act,” said Kumarapperuma.
However, the CID had sent samples to China with hopes of getting a second opinion. But Sri Lanka has not received any kind of technical expertise from China. “We have sent samples either to England, USA or India and there are similarities within these judicial systems as well. But the samples were then sent to another country by a Presidential Commission that was appointed and this reported states that the remains dated back to the 1950s. Hence, the case was closed.
“The sworn affidavits that were submitted for this case are still intact. The CID didn’t investigate as to what happened to the people mentioned in these affidavits – the state didn’t open an investigation to inquire where these 78 individuals were. The perpetrators of these incidents are part of the Executive. Investigations are being carried out by the executive. Even if the magistrate orders for an investigation, the investigating authority is part of the executive. Therefore the investigating authority is not independent. The government should have the will and the need to conduct an investigation of this nature and identify the perpetrators. The mass graves have been buried under telecommunication towers and hospitals because successive governments didn’t have the will to serve justice to the people,” said Kumarapperuma.
In conclusion, Kumarapperuma opined that a special procedural law should be brought about to apprehend perpetrators of crimes of this nature. “Otherwise, these perpetrators can never be brought before the law,” he underscored.