03 May 2016

“Criminal” and “Humanitarian” Approaches to Investigations into the Fate of Missing Persons : A False Dichotomy.

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In October last year, six and a half years after the end of the war, the government of Sri Lanka committed itself to a comprehensive approach to dealing with the past by co-sponsoring a historic resolution at the Human Rights Council in Geneva. In particular, the government has continued to maintain that it is currently considering the setting up of four special mechanisms: a Special Court and a Special Prosecutor’s Office, a Truth, Justice, Reconciliation and Nonrecurrence Commission, an Office for Reparations and an Office of Missing Persons.

The Office of Missing Persons (OMP) was envisaged as a discrete mechanism to receive complaints and investigate the many reports regarding missing persons in Sri Lanka. While, in the past, several commissions—including recently the Paranagama Commission—were set up to inquire into the fate of missing persons, their work has lacked credibility and fallen short of a full-fledged investigation. Therefore, the setting up of yet another mechanism triggers both skepticism as well as high expectations. It is in this context that the Sri Lankan government received the advice and technical expertise of the International Committee of the Red Cross (ICRC) with respect to the design of an Office of Missing Persons. The OMP would presumably be a “tracing body”. That is a body whose primary function is to trace missing persons and clarify the fate and circumstances of their disappearance.

Investigations into the fate of missing persons may stem from different approaches: either humanitarian or criminal. While these approaches are not mutually exclusive, they pursue somewhat different objectives. The humanitarian approach is generally advocated for by the ICRC. Under this approach, a “missing person” is generally defined as anyone unaccounted for as a result of an armed conflict or a situation of internal violence. The humanitarian approach aims at tracing all missing persons, irrespective of the commission of a crime or of a violation of international law. For instance, a person may be unaccounted for as a result of combat operations, because the means to identify combatants were insufficient or inadequate. In this case, a crime or an international law violation may not have occurred. However there remains a need to trace the person and provide answers to the family regarding her fate. While the ICRC sometimes recalls the need for the prosecution of crimes uncovered through the investigation, it does not systematically advocate for a direct link between the investigation into the fate of missing persons and criminal prosecutions. In criminal investigations, on the other hand, the primary purpose is to establish individual criminal responsibility for a crime, be it national or international. The search for the person is therefore undertaken as part of the overarching search for evidence of a crime.

While the focus of each of these approaches and the depth of the investigation may vary slightly from one to another, they are not mutually exclusive. However, conversations about the establishment of an OMP in Sri Lanka have falsely dichotomized the humanitarian and the criminal approaches, thereby placing before victims an artificial and unfair choice between truth and justice. This paper seeks to demonstrate that the two approaches have much in common and that pursuing both concurrently through an integrated approach would help further both truthseeking and criminal prosecutions.

I. Humanitarian and Criminal Approaches: Converging Investigations.

1. Scope of tracing and criminal investigations

A criminal investigation commences when information about a crime is brought to the attention of the law enforcement authorities. The trigger for an investigation into a disappearance may therefore be a police complaint lodged by relatives of the disappeared or the discovery of a crime site, typically a mass grave. For this reason, a criminal investigation may be regarded as case specific. On the other hand, a “tracing investigation”, that is an investigation aiming primarily at ascertaining the fate of missing persons, will adopt a broader approach. The first step will generally be the gathering and centralizing of all information relevant to tracing missing persons. Depending on the context, this could be tracing requests made to different institutions, lists of people in detention or medical facilities as well as displaced persons or refugee camps, morgues etc. The centralization of this data increases the chances of generating leads and establishing correlations for as many cases as possible. In order to establish correlations, forensic experts as well as investigators compare ante-mortem data (information on missing persons, such as personal, physical, medical and dental information, as well as information on the circumstances of their disappearance) as well as post-mortem data (information obtained during post-mortem examination, including detailed pathology, anthropology and odontology data, and information related to the cause of death). The tracing investigation therefore proceeds from a much more systematic approach than that of the criminal investigation.

2. Pursuing the same evidence.

Although they proceed from different approaches, both the criminal and the tracing investigations rely on the same type of evidence. For these reasons, both investigations are likely to overlap. For example, the physical evidence typically discovered at a mass grave site is relevant to the tracing as well as the criminal investigation. The physical characteristics of the bodies (height, dental print, fractures, injuries etc.), the DNA collected, or any artifact found on or near the body will be highly relevant to a tracing investigation. However, this type of evidence is also relevant to a criminal investigation. Conversely, the position of the bodies, bullet holes and ties around the bones may constitute prima facie evidence of crimes, but are also relevant evidence for a tracing investigation. A mass grave would likely contain physical evidence directly relevant to both investigations. This would also be the case for other crime sites where evidence relevant to the identification of victims and perpetrators, as well as evidence of crimes may be found.

In addition, as the tracing investigation progresses, it proceeds in a very similar way to a criminal investigation. In order to increase the chances of matching ante-mortem and post-mortem data, the tracing body would need to pursue other investigative methods including an analyzing archival documentation; conducting interviews of witnesses; and mapping criminal activities, events and networks. In addition, in cases where a person may be missing as a result of a crime (enforced disappearance and/or murder), the mere identification of the person or the remains by the tracing body is insufficient. In fact, under international human rights law, any investigation into a human rights violation must determine the circumstances of the disappearance or the killing and establish responsibilities. This would also require an in-depth investigation akin to a criminal investigation.

3. Exercising similar powers.

In order to carry out a full-fledged investigation, a tracing body must be able to exercise wideranging powers. These must include the power to access public premises, archives, and any other information; and the power to procure and receive any testimony. In this respect, a tracing body must also have the power to summon any person residing in Sri Lanka to give evidence, including under oath.

It is also crucial that provisions exist to ensure that interfering with the work of the tracing body be held liable for contempt. Offences constituting contempt against the tracing body may include, for instance, failure to comply with summons issued by the body or actively preventing and/or discouraging individuals from providing information or placing a tracing request. In addition, and in order to collect post-mortem data, a tracing body must also have specific powers relating to forensic analysis, exhumation and recovery of human remains.

Interestingly, although they did not exercise them, the various commissions of inquiry into the fate of disappeared or missing persons in Sri Lankan were invested with wide ranging powers of investigation (Commissions of Inquiry Act No. 17 of 1948, Sections 7 to 12). In the event a tracing body or a commission of inquiry exercises its powers fully in order to actively seek out evidence into the fate of missing persons, it may seize and handle evidence that is otherwise critical to the carrying out of a criminal investigation. In light of this, the separation of tracing and prosecutorial functions may be problematic.

II. The Cost of Separation : Justice Delayed or Denied.

1. The need for institutional cooperation.

In order to fully fulfill its mandate, the tracing body is likely to be interested in the same type of evidence and exercise the same type of powers as those required for a criminal investigation by law enforcement authorities. Therefore, in the event the tracing body is not invested with prosecutorial powers, institutional cooperation between those leading and conducting criminal prosecution—be it the Attorney General’s Department or a Special Prosecutor’s Office—and the tracing body will be required. Any difficulties with respect to the coordination of the tracing and the criminal investigations are thus likely to hinder both these investigations.

The problem may arguably be solved by sequencing the work of the tracing body and the criminal investigation and ensuring that evidence with respect to a case is only referred to the prosecution after the tracing for this case has been completed. However, such a solution could delay the sharing of evidence that is potentially relevant to other criminal investigations. In addition, given the amount of time generally necessary to successfully ascertain the fate of missing persons, this sequencing paralyzes the course of justice for years, and likely even decades. This solution also offers a perverse incentive to those interested in escaping prosecutions to hinder the work of the tracing body.

Whether both investigations are conducted concurrently or simultaneously, cooperation between the tracing body and the prosecution will be necessary to ensure the transfer and sharing of evidence. Further, the question of who ultimately supervises the handling, transfer, and preservation of physical and testimonial evidence relevant to both the criminal and tracing investigation would have to be resolved. In doing so, special care must be given to ensure that any handling of evidence by a tracing body—whether physical or testimonial—does not compromise, render inadmissible or lower the probative value of this evidence in a court of law.

2. Sharing information and evidence and risk of interference.

While there may be avenues for cooperation between the criminal investigation and the tracing investigation, this does not guarantee that the evidence collected in the course of the tracing investigation is admissible in criminal proceedings.

For instance, guarantees may be required in order to ensure that the evidence collected by the tracing body may be used in a criminal trial. Rules for admissibility of evidence in domestic, international or hybrid criminal proceedings vary. If a tracing body were to be set up in Sri Lanka, the collection, handling and preservation of evidence by this body must follow the same standards as those required in domestic as well as international criminal proceedings. For example, the chain of custody for physical as well as testimonial evidence must be rigorously documented throughout. In addition, the sampling of physical evidence as well as the excavation of mass graves must follow criminal standards to ensure that no evidence relevant to a criminal investigation deteriorates or is lost.

While rigorous standards may be adopted in order to ensure that physical evidence collected and handled by a tracing body is admissible in criminal proceedings, other difficulties arise with respect to testimonial evidence. In fact, a witness statement obtained by the tracing body may very well differ or contradict one obtained in a criminal investigation. In fact, the multiplication of statements to parallel investigations statistically increases the chances of contradictions between the various statements made by the same witness. In addition, given that the purposes of both investigations will be presented and perceived as different, the stakes for the witnesses and the motivation for giving a statement to either investigation are also likely to differ. This, in turn, may increase the likelihood of discrepancies. As a result of contradicting statements, key testimonial evidence risks being discounted in a criminal trial. In addition, in the course of its investigation, the tracing body may reveal sensitive information to witnesses it heard or interrogated. In some cases, the revealing of information may be detrimental to the prosecutorial work and strategy. Indeed, if witnesses and suspects are made aware at an early stage of key information regarding the course of the investigation, they may anticipate the prosecutorial policy and may make strategic choices that they would not otherwise have made. This could also negatively impact their decision to further collaborate with the tracing investigation.

Thus, the separation of the tracing and the criminal investigations may be very detrimental to the prosecution of crimes uncovered while searching for missing persons or to the search itself. On the other hand, merging both investigations, by for instance investing the tracing body with prosecutorial powers, could lead to more robust truth-seeking functions and may further assist the prosecution of crimes amounting to domestic or international crimes.

III. Benefits of an Integrated Approach.

1. Assisting truth-seeking by incentivizing collaboration.

The main reason adduced to justify the separation between the tracing and the criminal investigation is that this separation is necessary to incentivize witnesses to come forward and collaborate with the tracing body. The separation is therefore based on the premise that witnesses are more likely to effectively and meaningfully cooperate with a tracing body if the latter is devoid of prosecutorial powers. However, this is based on a series of assumptions that do not obtain in the Sri Lankan context or even elsewhere.

First, non-perpetrator witnesses may be willing to cooperate with the search for a wide range of reasons, including assisting the pursuit of criminal accountability. In any event, their concern is not one of prosecution. They may however have safety concerns, which can be addressed by ensuring confidentiality of their testimony and/or robust witness protection measures.

Second, even if the search for missing persons adopts a purely humanitarian approach, perpetrator witnesses—even those of lower rank or those whose participation in a crime was minimal—are unlikely to come forward willingly. Perpetrator witnesses summoned by the tracing body may also be reticent to cooperate fully. This is because the public revealing of the truth is never in the interest of perpetrators. Indeed, even if the perpetrator witness’ testimony remains confidential, the mere progress of the tracing investigation and the discovery of evidence of crimes invariably increases the prospect of prosecutions. The natural—and in fact rational— inclination is therefore to refrain from cooperating. Thus, unless the tracing body is able to offer tangible guarantees that prosecutions will not take place—for instance by granting amnesties— perpetrator witnesses are unlikely to cooperate. However, if there is prima facie evidence of an international crime (such as the crime against humanity of enforced disappearance or a war crime), amnesties would be deemed illegal by the United Nations and under the international human rights framework.

Therefore, the separation of the tracing and the criminal investigations does not provide an adequate or sufficient incentive for witnesses to come forward and collaborate fully with the tracing body. However, the merging of both investigations into a single investigative effort that serves both the tracing and the criminal purposes is more likely to advance truth-seeking. If the tracing body is assisted by a prosecutor or is invested with prosecutorial powers, it could offer far more incentives for cooperation. In this configuration, many options may be explored to obtain relevant information. These could take the form of immunity agreements, plea bargains, or reduced sentences when the witness is able to provide useful information. This would ensure that witnesses summoned by the body receive tangible guarantees in exchange for their full cooperation. In addition, a body invested with both a humanitarian and a prosecutorial mission is better positioned to make optimal decisions that will advance both imperatives jointly or that will balance competing interests in specific cases.

2. Facilitating the probing of international crimes.

In addition to advancing truth-seeking, a joint tracing-criminal investigation will also assist the prosecution of a wide-range of international crimes. In fact, the broad based investigative approach that the tracing body is likely to adopt by locating and conducting investigations into mass graves as well as official and unofficial places of detention may uncover evidence of patterns and criminal networks. This information and evidence will be very useful in prosecuting international crimes. This is because prosecutions of crimes against humanity require evidence regarding the widespread or systematic nature of an attack on a civilian population constituted by the relevant crimes.

IV. Comparative Experiences : A Distinct Preference for an Integrated Approach.

While ICRC’s initiatives for tracing missing persons pursue a purely humanitarian objective, very few other initiatives proceed from the same approach. One notable exception is the Committee on Missing Persons in Cyprus established in 1981. The mandate of the Committee was to locate and identify persons who went missing during inter-communal violence between the Greek Cypriots and the Turkish Cypriots in the 1960s and 1970s. The Committee overtly pursues a humanitarian approach and is therefore not mandated to establish the cause of death or attribute responsibility for the death of missing persons. However, investigations conducted by the Committee have been considered by the European Court of Human Rights to be insufficient to meet requirements with respect to the right to truth (Cyprus vs. Turkey, application no. 25781/94). Given that the Sri Lankan government purports to adopt a model based on the right to truth, the Committee on Missing Persons in Cyprus is not a suitable model.

In many state-led initiatives, the search for missing persons departs from a purely humanitarian approach and is coupled with criminal investigations for domestic and international crimes. In some cases, the search is carried out directly by regular state institutions, with the assistance of international organizations (such as the International Commission on Missing Persons) or NGOs. For instance, in Iraq, the Law on Protection of Mass Graves provides that the Ministry of Human Rights assumes the leading role in the opening and indexing of mass graves, as well as documenting their contents. When a mass grave is discovered, the Ministry takes possession of the location and an ad hoc commission is created to supervise the exhumation process. The commission is composed of representatives of the prosecutor’s department, the police and the court of appeals, amongst others. The purpose of the investigation is explicitly to ascertain the fate of missing persons, to identify perpetrators and to assist the collection of evidence to prove their criminal responsibility.

In Guatemala, investigations into the fate of missing persons are led by the judiciary. However, a non-governmental organization, the Forensic Anthropology Foundation of Guatemala, plays a central role in assisting the process. Its experts are appointed as forensic experts by the courts or the prosecutor to conduct forensic investigations on their behalf. The purpose of the investigation is therefore both to assist the tracing of missing persons as well as to collect evidence for criminal prosecutions.

In other countries, specialized institutions are created to address the problem of missing persons. For instance, in Colombia, a National Commission for the Search of Disappeared Persons was created in 2007. The role of the Commission is mainly to promote, support and assist the search for disappeared persons undertaken by other institutions, including by designing and evaluating search plans. The Prosecutor’s Office is in charge of the investigation together with other institutions referenced in the national search plan developed by the Commission.

In Bosnia and Herzegovina, a specialized body for the search and identification of missing persons—the Missing Persons Institute—was created in 2005. However, the investigation of missing person cases is carried out under the purview of the courts. The search is therefore linked to criminal prosecutions. The Prosecutor’s office which conducts war crimes investigations initiates and supervises mass grave exhumations. The Missing Persons Institute, on the other hand, plays a crucial role in locating mass graves and addresses exhumation requests to the Prosecutor.

Therefore, in most countries where special legislation was enacted to facilitate the search for missing persons, the emphasis is on ensuring that the search serves both a humanitarian purpose: that is to provide answers to families regarding the fate of missing persons, while at the same time directly contributing to criminal investigations and prosecutions of crimes committed against victims.

V. Options for Sri Lanka.

In Sri Lanka, a number of considerations with respect to the magnitude of the missing persons’ problem, the poor track record of the Attorney General’s Department on human rights related issues, as well as the need for capacity support in forensic investigations justify the setting up of a specialized body. Such a body would have to be staffed and funded appropriately to undertake comprehensive and thorough investigations. The relevant expertise in forensic anthropology and archeology could be located within the proposed OMP. While this Office could take the lead in investigations into the fate of missing persons, its work ought not to be artificially separated from criminal investigations.

Drawing from comparative experiences, and given the specific challenges of the Sri Lankan context, a number of options are available. Any of these options must take into account the fact that the OMP may uncover both international as well as domestic crimes in the course of its investigation. Therefore, in the event ad hoc institutions are created to prosecute and try international crimes, there will be a need for coordination and cooperation with these new mechanisms as well. If a Special Prosecutor’s Office is established to prosecute international crimes, the latter could exercise prosecutorial powers for international crimes uncovered in the course of the OMP investigation. The Special Prosecutor could then exercise oversight over the OMP investigation.

However, in the event the Special Prosecutor only exercises his powers with respect to a narrow range of very serious crimes, there remains a need to ensure that other crimes committed against victims of disappearances are prosecuted. In addition, unlike the OMP, the Special Prosecutor’s Office—if created—may not be a permanent body. Prosecutions that are not initiated and conducted by the Special Prosecutor could then be conducted by the Attorney General’s Department. However, given the very serious concerns regarding the way prosecutions have been conducted by this Department in cases involving human rights issues, this may not be an advisable solution. In fact, the raison-d’être for the establishment of a Special Prosecutor’s Office is that criminal prosecutions in respect of grave human rights abuses amounting to international crimes must be conducted outside the purview of the Attorney General’s Department.

In light of this, a preferred option would be to invest the OMP with prosecutorial powers. This would be similar to the model adopted for the Bribery Commission ( Bribery Commission Act No.19 of 1994, Sections 12,13). However, in the event there are concerns about the capacity of prosecutors within the OMP, the OMP could be empowered to delegate the actual conduct of trials to specialized prosecutors, including the Special Prosecutor for the duration of its tenure, but maintain decision making authority with respect to the overall prosecutorial strategy.

VI. Conclusion

Separating the tracing and the criminal investigations serves neither the interests of truth-seeking nor the interests of justice. Given the overlap in both investigations, a strict separation between the tracing body and a criminal investigation is in any event not possible. A certain degree of cooperation including through the sharing of evidence and information is therefore necessary. However, even assuming that this cooperation takes place, the carrying out of parallel investigations (whether simultaneous or successive) is in itself problematic. First, it is unlikely that a purely humanitarian approach strictly separated from prosecutions increases the chances of obtaining information from perpetrator witnesses. Second, parallel investigations are likely to interfere with one another. Finally, the handling of physical and testimonial evidence by the OMP may compromise the criminal investigation. It is therefore preferable that any investigation into the fate of missing persons serves both a tracing and a prosecutorial purpose. In Sri Lanka, the government has committed to establish a Special Prosecutor’s Office to prosecute grave human rights abuses amounting to international crimes. However, unlike the OMP, this Office is not likely to be permanent. In light of this, a possible solution could be to invest the OMP with prosecutorial powers. This would also ensure that any strategic decision taken in the course of the investigation advances truth-seeking ( by providing answers to families within a reasonable time frame) while taking into account the interests of justice.

Dr Isabelle Lassée

Isabelle has worked in Sri Lanka for the past five years. Previously, she has interned at the prosecutor’s office at the Khmer Rouge tribunal in Phnom Penh, and has worked at several UN agencies and NGOs in France, Ghana, the Maldives. She has also taught international human rights law, international humanitarian law and international criminal law at various universities including Sciences Po, Paris.

Isabelle has a doctorate in international law with high honours from Université Paris II Panthéon-Assas. Her doctoral research focused on the role and contribution of UN mandated commissions of inquiry to peace building, human rights protection and Transitional Justice. She holds a Master’s degree in human rights and humanitarian law from Panthéon-Assas, an advanced research diploma in international law from the Institut des Hautes Etudes Internationales, and a certificate in criminology from the Institut de Criminologie de Paris.

Isabelle is an avid extreme sports enthusiast, but since arriving in Sri Lanka has given up sky-diving for kite-surfing.