APRIL 2018

 

TJ INSIGHT

Early this month, the Human Rights Commission of Sri Lanka (HRCSL) – in a letter to the President – highlighted that the Sri Lankan army had deployed 49 troops to the UN peacekeeping mission in Lebanon before the HRCSL had completed vetting these troops. Relevant government entities entered into an agreement with the UN Department of Peacekeeping Operations (DPKO) in 2016, which stipulates that all Sri Lankan troop deployment to UN peacekeeping operations first needs the HRCSL’s certification stating that the selected soldiers have not been credibly implicated in international human rights (IHRL) or humanitarian law (IHL) violations. The HRCSL’s public denouncement of the deployment and the UNDPKO’s firm directive requiring the army to facilitate the vetting of the 49 troops seems to have forced the hand of the army to formalize its peacekeeping vetting processes. A new Directorate of Overseas Operations comprising of a Human Rights Unit was declared open by the Sri Lankan army this month and its mandate includes coordinating with and facilitating the HRCSL in vetting troops sent on UN peacekeeping missions.
Interestingly, the US Appropriations Bill for the Financial Year 2018, also states that financial assistance for Sri Lanka’s international peacekeeping operations would be contingent on the government ‘taking effective steps to bring to justice Sri Lankan peacekeeping troops who have engaged in sexual exploitation and abuse’. The Bill also states that financial assistance for economic development and democracy programs in Sri Lanka would only be made available to the country if − among other things − steps are taken to establish a credible justice mechanism in accordance with resolution 30/1, repeal and replace legislation that do not conform with international standards for arrest and detention and implement a functioning Office on Missing Persons (OMP), whilst also releasing a list of all persons who surrendered to the government after the end of the war.
With the government not having taken meaningful steps to establish a justice mechanism, introduce comprehensive security sector reforms or repeal and replace the Prevention of Terrorism Act, the incremental progress being made by the OMP remains the only silver lining. The OMP‘s recently unveiled strategy of meeting with families of missing persons around the country in order to share its future plan of action and obtain their views is to be welcomed. It indicates that the Commissioners are attempting to build and sustain trust in the Office by working closely with the families through an outreach strategy.

 

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THE OFFICE ON MISSING PERSONS: SOME THOUGHTS ON NECESSARY FIRST STEPS

The Office on Missing Persons (OMP) began its operational work this month by calling for applications to twelve staff positions. This is undoubtedly a positive development which should be part of a broader strategy to systematically operationalize the Office. 

As a first step, the OMP Commissioners must deliberate and decide on the OMP’s overall structure. The OMP Act only provides for a basic structure and empowers the Commissioners to create additional divisions/units to supplement the entities provided for by the Act. Any new entities should help the OMP perform its functions under the Act. SACLS has − in its previous work − recommended that a policy unit, outreach unit and psychosocial unit be established since the OMP is required to make policy recommendations relevant to its mandate to authorities, liaise closely with families of missing persons/reach out to the public and provide psychosocial support to relatives of missing persons. In addition, the tracing unit – which is central to the OMP’s mandate – must have specific sub-units within it to handle (a) data gathering, (b) data analysis and management and (c) the archiving and storage of evidence. To a large extent, the OMP’s investigative strategy at a particular point of time will determine the staffing of a particular sub-unit and the finances that are channeled towards it. For example, depending on whether the OMP decides to opt for DNA led or traditional methods to identify human remains, the amount of funding, the type of staff training and the database used to centralize and process the data/evidence would differ. 

Once the overall structure of the Office and an investigative strategy has been devised, staff recruitment could be tinkered to suit the OMP’s strategic needs. In particular, the Office will have to gradually streamline its recruitment by adopting internal rules which specify the broad principles (non-discrimination, gender parity, national languages competence etc) that would govern the hiring process and the general skills and competencies expected for each staff position. Moreover, establishing a process to thoroughly vet individuals recruited to the OMP will be essential to build and safeguard public confidence in the Office as it begins its work. 

As soon as the OMP establishes these early parameters and begins its investigations, the manner in which it interacts with relatives of missing persons will determine its success. In terms of the Act, the OMP is required to provide relatives information about the progress of an investigation unless providing this information would hinder the on-going investigation or not be in the best interest of the missing person. Since these caveats are very broad and confer wide discretion on the OMP officers, the OMP’s internal rules must clarify the criteria that will be used to determine whether a case falls within these exceptions and also designate the type of officer who would be responsible for providing the relatives progress updates. Greater procedural certainty will be essential to sustain the trust of relatives who have had to endure decades of broken undertakings from different processes. In similar vein, the OMP is required to provide a report to the relatives of missing persons at the conclusion of an investigation. Where a missing person is deceased or his whereabouts are unascertainable, the Office must inform the missing person’s relatives of the circumstances in which he or she went missing and of his or her fate. If a missing person’s whereabouts have been ascertained, the Office is under a duty to inform the relatives about the circumstances under which such person went missing and his or her whereabouts, provided that the missing person consents. 

Each of these duties is subject to the OMP’s confidentiality obligation. Therefore many relatives of missing persons may have concerns that the OMP could withhold such information on the grounds of confidentiality. Therefore the OMP’s internal rules must clarify that confidentiality would extend to witness information only if it has been fairly determined that such confidentiality is absolutely necessary to protect the witness’ safety. In every other situation, the full extent of witness information should be shared with relatives whilst only protecting the witness’ identity if necessary.   

Many of the OMP’s crucial first steps such as planning, adopting schemes of recruitment and compiling internal rules will take a fair amount of time. The OMP must link with relatives of missing persons and the wider public in the interim and offer them a fair, honest and time bound plan of action that effectively manages expectations.      

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