Sri Lanka OMP Bill: Concerns and Recommendations by WAN

(Image by Amantha Perera/IRIN)

WAN Statement on the Proposed Office of Missing Persons (OMP).

On May 27^th, 2016, the Government gazetted a new bill on the “Office on Missing Persons (Establishment, Administration and Discharge of Functions)”. Throughout June, the Women’s Action Network (WAN) conducted trainings, interviews, and focus group discussions in the north and east to gather the views of war-affected women on the four proposed Transitional Justice (TJ) mechanisms: the OMP, Truth Commission, Justice mechanism, and Office of Reparations. Based on these consultations and drawing from comparative experience and best practices, WAN believes the Bill can be strengthened in several respects to address the needs and goals of affected women in the north and east.  The OMP and other TJ processes must challenge the root causes of human rights violations and take a gender-sensitive approach.

WAN sees that the primary goals and principles of the OMP as:

1. To collect, collate, analyze and document all cases of people who have been disappeared or otherwise missing within a year.
2. To undertake full and comprehensive investigations into the nature of the disappearance and whereabouts of the victim, living or dead;
3. Provide detailed information to the families of the disappearance together with psycho-social support and reparations as required;
4. Provide a comprehensive set of data and background information on numbers of people missing and the nature and impact of disappearances as part of a process aimed at truth telling, acknowledgement and reconciliation; and
5. Make available evidence to both judicial and non-judicial processes of justice and accountability.

WAN expresses concern that the OMP Bill has reportedly been designed with little prior consultation with the families of disappeared. It has been said by some that the priority is have the Office up and running without delay, but a balance between speed and good design and effective processes is a must. Consultations should not be seen as merely a box to be ticked but as absolutely central to the design of an OMP that responds to the needs and aspirations of the victims and their families and to the wider needs of a nation moving towards reconciliation. Consultation will enhance the effectiveness, the design, the credibility and legitimacy of the OMP. It can also become an example of the new commitment to democracy and good governance in which the state becomes responsive to the needs of the people rather than imposing policy through a top-down and centralized system of control.

Consultation must be established as integral and for the entire duration of the OMP. It is not just as a one off but an on-going process continually reefing the operations of the OMP and keeping the entire population informed as to its progress.

1. Recommendations for OMP Structures and Processes

The OMP must be victim-centered and designed to ensure empathy, accessibility, gender-sensitivity, transparency, and independence. 

Empathy:

• The OMP should start from an understanding of what it means to have a family member disappeared. Surviving relatives, often women, are left to navigate the present without knowing if their loved ones are dead or alive. They register complaints with the CID, ICRC, Human Rights Commission, Paranagama Commission, and other authorities and are made to re-live their trauma again and again as they retell their stories without avail. They are surveilled, harassed, placed at significant risk as female heads of households, and they deplete savings in hopes of finding the truth.
• OMP staff should consist of caring, trusted locals who understand the geography, language, and history of the area. Staff members must be experienced with working on enforced disappearance. The process should give victims time and space to tell their stories. Victims should not be cut off or told merely to submit their information in writing, as occurred with the Paranagama Commission.
• To prevent further re-traumatization, the OMP should collect, collate and analyze the data that has already been collected by previous commissions.
• The OMP’s victim/witness testimony and other evidence should be shared directly with other TJ mechanisms to prevent the need to retell the same information. Therefore, at the outset a series of protocols and guidelines must be put in place to ensure that the evidence gathered is to a standard that may be considered admissible in a later judicial proceeding and that it is held in a safe and secure manner to be used with the consent if the witness/victim, as appropriate.
• Many women objected to the name of the OMP, stating their loved ones were disappeared and not merely missing. Among other things, women should have certificates of absence labeled as “certificates of disappearance.” Those who have been forced to accept death certificates should be allowed to exchange such certificates to certificates of absence/disappearance.
• The OMP should consider the interconnected ways disappearance affects kin, particularly women. The OMP should be able to recommend reparations and assist in job placement and preferential school admissions. The OMP should be linked to a reparations unit/office that can quickly process reparations; victims should not have to go to multiple different places as they rebuild their lives. Certificates of absence/disappearance should be declared as presumptively valid to enable women to access their husbands’ Bank accounts, pensions, properties, subsidies, gratuity/EPF/ETF, welfare payments, and life insurance. The OMP should facilitate private sector recognition of these certificates. The OMP should help reduce debt obligations for affected women who are carrying the debts of their missing husbands, fathers, and sons.
• The OMP should investigate perpetrators according to victim’s wishes, whether the disappeared person’s fate is known/unknown and whether the identity of the perpetrator is known/unknown. The outcome of the OMP’s investigations should inform later accountability processes.
• Psychosocial support should be available throughout the process, from initial engagement to learning a disappeared person’s whereabouts to identifying remains and performing death rituals if the person was killed. Planning and funding must be in place to provide training and capacity building based on best international practices and experience to ensure this support is provided in a timely and comprehensive manner.

Accessibility and Gender Sensitivity:

• The OMP should have district-level offices and be accessible to physically challenged persons.
• The OMP should offer financial assistance, transportation, physical protection, and psychosocial support to those who engage.
• OMP staff should be 50 percent female, and all staff must have gender-sensitivity experience and on-going training and support to be able to address issues as they arise. The OMP must always make female translators available.
• The OMP should allow testimony from all witnesses who have seen an abduction or act of surrender or who may provide other relevant information to an investigation and not limit testimony solely to relatives of the disappeared.
• Victims should have a mechanism to make complaints against OMP staff members who behave insensitively toward women. The OMP should take immediate corrective action, including by removing offending staff members.
• Victims should be able to suggest improvements to the structure or processes of the OMP, if the initial structure proves to be unresponsive to women’s issues.
• Some women report having been forced to pay bribes (including sexual favors) for information about their disappeared relatives. The OMP should report these incidents to the bribery commission. The OMP should recommend reparations for women to recover monies (bribes) paid to the CID, TID, politicians, and paramilitary groups. Perpetrators should be promptly investigated and charged.
• Paragraph 18 of the OMP Bill creates a “Victim and Witness Protection Division within the OMP” to “protect the rights and address the needs and concerns of victims, witnesses, and relatives of missing persons.” This unit should be required to function independently from the AG, IGP, and TID and be staffed with members of civil society, Human Rights Commission Sri Lanka, and international human rights observers.
• Paragraph 1(c) of the OMP Bill requires the OMP to protect the rights and interests of missing persons and their relatives. To achieve that mandate, families of the disappeared must be at the center of all investigative processes. The OMP Bill should be amended to create a unit or division to engage closely with relatives and victim’s groups in each district or region of investigation. This could be created within the “Victim and Witness Protection Division” under Paragraph 18 or as a separate unit under Paragraph 11(e). Families should be able to give periodic and tangible input and feedback on procedures, priorities, and tangible outcomes of the OMP.

Transparency:

• Data collected from previous commissions must be made publicly available, with appropriate safeguards in place to protect identities.
• Statistical information such as the number of persons in detention, detention locations, the number released, and the number disappeared should be entered into an electronic system that can be easily analyzed and checked for duplication.
• The OMP must publicly report its activities, procedures, and general findings and continuously engage with families of the disappeared and local women’s groups in their preferred language. Relatives of the disappeared must be allowed to confidentially inquire whether the perpetrator is being investigated.
• The Paranagama Commission recently sent letters to many families stating it “intends to discontinue investigations” but “if it transpires to you or to the Commission that credible evidence surfaces regarding the missing person, the Commission will not hesitate to take necessary action accordingly.” This complete lack of transparency and sensitivity should be avoided in the OMPs communications with families of the disappeared. Most importantly OMP should communicate with survivors in their own language unlike Paranagama commission that has been sending letters in English and Sinhala to families that can only understand Tamil.
• The OMP must inform individuals of any consequences of accepting a death certificate, certificate of absence, or certificate of disappearance for their disappeared kin.

Independence:

• The OMP must function independently from other governmental entities.
• OMP staff should be carefully vetted to ensure they are trustworthy and do not have any prior record of harassment, intimidation, or violence. They should be persons who can be trusted to protect the privacy and confidentiality of all communications, testimony, and data. They should be known for their neutrality.
• The OMP’s work should be monitored by an independent group of local and international experts. In particular, there should be a group of women who monitor the OMP for gender sensitivity.

 2.Recommendation to Add a Forensics Unit to the OMP Bill

The OMP bill can be strengthened by including the establishment of a dedicated forensics unit, led by Latin American experts in forensic anthropology and forensic archaeology.

• In the years after the war, mass graves have been discovered in different areas, affecting different communities. The Matale grave contained 154 bodies, and the Mannar grave contained 83 bodies. In both cases, skeletons showed signs of serious torture, but current processes for investigating these atrocities have been inadequate. Given the numbers of disappeared in Sri Lanka, additional mass graves may be discovered as the OMP begins its work.  The Mannar and Matale cases, as well as past experience in the Chemmani and Sooriyakanda cases, reveal the need for a centralized, coordinated approach that applies international best practices to investigate all mass graves.
• The OMP should have a dedicated forensics unit, perhaps modeled on the Office of Missing Persons and Forensics in Kosovo. The mandate of the unit should be to identify victims and return remains to families. The unit should work in coordination with other branches of the OMP to consider issues of compensation, death certificates, and psychosocial support at the outset.
• The gazetted OMP bill allows the office to enter agreements for “technical support and training (forensic or otherwise) and collaboration. (Para. 11(a).) It also requires the Tracing Unit to be staffed by “competent, experienced, and qualified investigators, including those with relevant technical and forensic expertise.” (Para. 17(2).) While this is positive, the OMP would be strengthened if it incorporated a forensics unit from the outset.  The problem with current bill is that it may be possible for outside experts to be prevented from providing meaningful assistance or oversight, as was the case in Chemmani where outside forensics experts were involved.
• Forensics should not be limited to building a state-of-the-art lab or calling in outside forensics help at a late stage of investigation. This top-down method (favored by groups like the International Commission of Missing Persons- ICMP) failed in Bosnia because it did not put families at the center.  Families of the disappeared must be at the center of the forensics process in Sri Lanka. Teams working in Peru, Guatemala, and Argentina took precisely this approach, and the OMP should allow those forensic anthropology teams to lead the forensics process alongside families of the disappeared here.
• To meet international best practices, forensics work does not start with DNA, but instead with a comprehensive database of antemortem data. This data allows forensics experts to draw correlations and suggest hypotheses about who the remains in mass graves may be. Under an investigative-led approach, families are at the center of the process of gathering antemortem data, and DNA is used only later to corroborate results. Families of the disappeared are asked key details to piece together the story of the disappearance (who, when, how, identifying details, corroborating witnesses, physical evidence, scars/birthmarks, etc.). This antemortem database can also the OMP’s other work, as it would contain information of those missing as well as those known to be deceased.
• Another task of the OMP should be to identify the possible mass gravesites and securing those sites for further investigations (may be through the special council/court). Given the testimonies that the OMP will get from witnesses and affected families, there is a high possibility of mapping such mass gravesites at the initial stages of OMP investigation.
• In short, the OMP must invite relevant international and local experts to design a forensics unit from the ground-up. Both the Peruvian Team of Forensic Anthropology (EPAF) and Guatemalan Team of Forensic Anthropology (FAFG) have visited Sri Lanka in the last few months and met with affected families and women’s organizations and would be well positioned to lead this process. Ultimately, a victim-centered approach places relatives of the disappeared in each region or locality at the center of decisions whether to exhume mass graves and make individual identifications of skeletal remains.

 3. Recommendations for Broad Legal Reforms 

For the OMP to have any impact, the Government must repeal the Prevention of Terrorism Act (PTA) and introduce a bill criminalizing enforced disappearance.

• On 30 June 2016, a man under constant surveillance by state intelligence officers was abducted and disappeared in Mannar. He was found two kilometers away from where he got abducted with burn marks across his back. Without structural reform, including repeal of the PTA and criminalization of enforced disappearance, these abuses will continue irrespective of promises the Government makes to the international community.
• While the Government has now ratified the U.N. Convention on Enforced and Involuntary Disappearance, we have yet to see a law criminalizing enforced disappearance. We raised this same point during public consultations on constitutional reform before the Public Representation Commission but have yet to see any movement.
• In co-sponsoring the 2015 U.N. Human Rights Council resolution, the Government committed to repealing the PTA. Draconian laws like the PTA are one of the major causes of enforced disappearances, as they have allowed state security forces to abduct and arbitrarily detain persons without producing them before a magistrate. The PTA is responsible for disappearances, torture, and custodial deaths of Tamils in the north and east.  Many women have been detained and even jailed for demanding truth and justice for their disappeared kin.  Despite promises of reform, the PTA remains in effect, and the CID and TID continue to subject women in the north and east to widespread surveillance and harassment with impunity.

WAN welcomes the creation of the OMP but expresses deep concern at the lack of meaningful consultation in developing the gazetted OMP Bill.  The Bill may be strengthened in several respects to ensure empathy for victims, accessibility, gender-sensitivity, transparency, and independence.  WAN offers these constructive recommendations to place families of the disappeared at the center of the investigative process.  With careful design and consistent outreach with affected families, the OMP can mark a break from past mechanisms and hope to address the structural causes of mass scale disappearances in the north and east and take a gender-sensitive approach.