05 December 2016

Operationalizing the Office on Missing Persons: Manual of Best Practices

Written by Medhaka Fernando and Dr. Isabelle Lassee

Introduction

On 23rd August 2016, the Sri Lankan Parliament adopted the Act to establish an Office on Missing Person (OMP).1 The OMP was created as part of a four-tier transitional justice proposal that comprises, alongside the OMP, a truth commission, a special court and a special prosecutor’s unit, and an office on reparations.2
The establishment of the OMP as a discrete transitional justice mechanism dedicated to “the search for and tracing of missing persons and the clarification of the circumstances in which they went missing”3 responds to the humanitarian imperative of resolving over 16,000 reported cases of missing persons in Sri Lanka.4 Despite the appointment by successive Sri Lankan Presidents of several Commissions of Inquiry (CoIs) to look into the issue and investigate these cases, thousands of families are still unaware of the fate of their loved ones. Past CoIs were marred with allegations of unprofessional and unethical behavior on the part of their staff.5 These Commissions were also criticized for their lack of independence and efficiency.6 In this context, the creation of the OMP was received with high expectations in some corners and disillusionment in others. For many, the first few months of the Office’s tenure and the first steps that it will undertake in the fulfillment of its mandate will be crucial in determining whether it will break away with the poor record of previous CoIs.
The Office’s mandate encompasses the search for and tracing of missing persons and the clarification of the circumstances of their disappearance.7 The Act defines a missing person as a person who went missing in certain specific contexts but irrespective of the date of the disappearance.8 Thus, for the purpose of the Act, missing persons are persons who went missing in the context of “the conflict which took place in the Northern or Eastern Provinces or its aftermath, or if the person is a member of the armed forces or police who is identified as “missing in action” as well as persons who went missing “in the context of political unrest or civil disturbances.”9 In addition, the Office’s mandate also covers enforced disappearances as defined in the International Convention on Protection of All Persons from Enforced Disappearances.10 Besides its investigative mandate, the Office is also tasked with centralizing all available data on missing persons, making recommendations to relevant authorities towards addressing the incidence of missing persons, protecting the rights and interests of missing persons and their relatives, and identifying avenues for redress.11
In order to fulfil its mandate, the OMP will have to define its internal structure and processes and recruit and train specialized staff. It will also have to devise internal rules and guidelines for its day-to-day functioning and to ensure the respect of best practices in tracing investigations.12 Finally, the Office will have to make strategic choices including which database to use, which method to adopt for the identification of human remains and which cases to investigate in priority.
This Manual surveys best practices on tracing investigations in various countries including Argentina, Chile, Peru, Colombia, Guatemala, Bosnia and Herzegovina, Kosovo, Iraq, South Africa, and Nepal in order to guide the Office as it operationalizes its mandate. To this end, the Manual examines the successive steps that the Office will have to undertake to perform its functions and fulfil its mandate, including: defining its internal structure and oversight mechanisms; staffing; designing a witness protection program; planning and opening an investigation; receiving and procuring information; carrying out on-site investigations; identifying human remains; securing and storing data; and carrying out outreach activities. For each of these steps, the Manual makes recommendations based on best practices, taking into account the powers of the Office under the Act and the specific context in Sri Lanka.

Chapter 1: Structure and Staffing

The first step to operationalize the Office on Missing Persons (OMP) is to determine the Office’s structure and to recruit specialized personnel. This chapter proceeds by first outlining important considerations to be taken into account when designing the OMP structure and recommendations are made in that respect. When creating structures, two considerations should be taken into account. First, any new entities should assist the Office in carrying out its specific functions. Second, the overall structure should facilitate the flow of information and ensure smooth linkages between units, divisions and other committees. Next, this chapter outlines best practices applicable to staffing considerations, including applicable recruitment principles, skill requirements and vetting procedures. It also explores the need for a code of conduct applicable to all OMP staff.
I. Structure
While the Act provides for the Office’s basic structure,13 it also specifies that the OMP may establish Committees, Divisions and/or Units as required for the Office’s effective administration and functioning.14 These may be required to perform OMP’s functions other than tracing missing persons or to support the work of Divisions or Units provided for in the Act.
1) Units and Divisions Provided for in the Act.
The OMP Act provides for the creation of a Secretariat, a Victim and Witness Protection Division and a Tracing Unit.15 Each of these Units or Divisions may be divided into sub-units as appropriate to facilitate the performance of its function.
a. Secretariat
The Act specifies that the OMP Secretariat will be responsible for the administration of the Office.16 The Secretariat will therefore be tasked with staffing the OMP, allocating resources, coordinating between the various Units, Divisions and Committees and with relevant external entities, and devising rules, guidelines and procedures.17 In order to guarantee the respect of the Office’s internal rules, it may be useful to create an Oversight Committee within the Secretariat. This Oversight Committee will be in charge of examining complaints against Office’s officers for violations of the code of conduct or of their obligations under the Act (cf Chapter 10: Oversight).
b. Victim and Witness Protection Division
According to OMP Act section 18(1), “there shall be a Victim and Witness Protection Division within the OMP that shall protect the rights and address the needs and concerns of victims, witnesses and relatives of missing persons.”18 This Division would be responsible for qualifying witnesses to the witness protection program, assessing the threat level and the appropriate response and providing protection (cf Chapter 3: Witness Protection).
c. Tracing Unit
According to the OMP Act, the Tracing Unit “shall be responsible for tracing and searching for missing persons and for assisting in clarifying the circumstances of such disappearance, and the whereabouts and fate of such missing person [sic].”19 Given that the Parliament empowered the Tracing Unit with broad functions, it may be advisable to subdivide the Unit into smaller entities, or sub-units, entrusted with specific tasks.
To fulfil its mandate, the OMP must collect and process large amounts of information and evidence. Thus, the OMP must establish structures and processes—referred to as information management processes—to collect,20 centralize and analyse21 and store22 information. These structures and processes must be in place before the OMP starts collecting or receiving information about missing persons or the location of gravesites to ensure that the information received or collected is centralized, categorized and labelled appropriately for proper investigation.
To account for the different stages of the information life cycle, the OMP may decide to create specific sub-units in charge of data gathering, data management and analysis, and archiving and storage. Each of these functions requires specific expertise and specialized staff.
Under this model, the Data Gathering Sub-Unit would manage the procurement and receipt of information and conduct/observe on-site investigations (cf Chapter 5: Receiving and Procuring Information and Chapter 6: On-Site Investigations). It would also collect biological reference samples from relatives of missing persons.23 Given that this would require specifically trained personnel, it may be appropriate to create a small Biological Sample Collection Sub-Unit within the Data Gathering Sub-Unit to perform this task.
The Data Management and Analysis Sub-Unit would process information in order to: (1) assist with planning the investigations and locating mass graves; (2) assist in the identification of human remains; and (3) update missing persons’ files. This Sub-Unit will also be in charge of entering data into the central database.24 Given the potentially large number of cases, the Office must update cases regularly with new information and make that information accessible to family members. The OMP could achieve this by opening missing persons’ case files. Files must include a record of all investigative steps taken with respect to the case, the names of officers involved in the investigation and the dates of the various investigative steps taken. Designated OMP analysts must be responsible for updating case files and for liaising with families to inform them of the investigation’s progress whenever possible (cf Chapter 9: Information to Families and Public Outreach).
Finally, the Archiving and Storage Sub-Unit would have the custody of all physical evidence (e.g., documents, biological data, artefacts received or procured by the Office) and would preserve and secure appropriately all evidence (cf Chapter 8: Data Storage).
2) Additional Recommended Units
In addition to the Act’s explicit units and divisions, the Office should also consider establishing a Policy Unit, an Outreach Unit, and a Psychosocial Support Unit.
a. Additional Units for Functions other than Tracing
In addition to carrying out tracing investigations to ascertain the fate and whereabouts of missing persons, the Office is also entrusted with additional functions, including making policy recommendations to relevant authorities.25 Therefore, the OMP should consider establishing a Policy Unit that would be tasked with making these recommendations. In particular, the OMP is mandated to make recommendations for the prevention of future disappearances, based on patterns identified in the course of its work. Part of its mandate is also to identify avenues of redress to which missing persons and relatives of missing persons are entitled.26 To this end, the OMP must make recommendations for prosecutions based on evidence and patterns uncovered in the course of its investigations. A specialized sub-unit may be created to analyse patterns of criminal conducts and make recommendations for the prosecution of specific cases. This Redress Sub-Unit could, for instance, prepare dossiers, and subject to limitations of confidentiality (cf Chapter 3: Witness Protection), liaise with credible prosecutors and investigators and assist victims to pursue justice.
The OMP Act also refers to the provision of information to families and public outreach.27 Therefore, the Office should consider establishing an Outreach Unit. This Unit could liaise directly with families of missing persons and inform the public of the Office’s mandate, functions and work of the Office (cf Chapter 9: Information to Families and Public Outreach). In addition, a Complaints Desk in charge of receiving information about missing persons (cf Chapter 4: Planning and Opening the Investigation) could also be located within the Outreach Unit, which should be staffed with personnel fluent in Tamil, Sinhala and English. Locating the Complaints Desk within the Outreach Unit would also facilitate the provision of additional information to victims and witnesses about the investigative process and how to obtain case updates.
In addition, the Act also requires that the Office provides—or facilitates the provision of—psychosocial support to families of missing persons.28 A specific structure might be created to fulfil this function. This Psychosocial Unit would need to service both the Victim and Witness Protection Division and the Outreach Unit because each unit will come into contact with individuals in need of support, including victims, witnesses and family members.29
b. Support Units
As will be explained in the following chapters, tracing investigations are complex and require a wide range of technical and scientific expertise. To ensure success, the Office should consider establishing expert committees, such as Investigative and Forensic Expert Committees. These expert committees could advise on designing appropriate rules, guidelines and protocols for tracing investigations. Additionally, they may assist the OMP in carrying out its investigations. Similarly, establishing an Information Technology Unit may be important to assist with the OMP database maintenance and security.30 Finally, the OMP must consider establishing a Gender Unit to assist the design of gender sensitive policies and practices and carry out staff trainings.31
c. Oversight Committees
While the OMP Act does not provide for the creation of oversight structures, it might be useful to establish such oversight committees (1) to ensure that the Office’s staff complies with international rules and guidelines, and (2) to provide checks and balances for the Office’s strategic and other decision-making processes (cf Chapter 10: Oversight). To this end, the OMP may create two oversight structures: an Oversight Committee to oversee staff compliance with the OMP rules (this may be located within the Secretariat), and a Victim-Based Oversight Committee composed of representatives of missing persons’ families to oversee the Office’s strategic decisions such as the planning of investigations.
omp infographic
II. Staffing
Section 11(d) of the OMP Act empowers the Office to appoint and dismiss staff and consultants, and to request the secondment of public officers to the OMP.32 In order to carry out these functions, the OMP must identify its needs and devise staffing procedures, including hiring, firing and secondment processes. In addition, according to section 11(c), the OMP may also issue staff rules and guidelines, including gender sensitive policies.33 Such gender sensitive policies would be essential to address specific and divergent needs of men and women who are victims, family members and witnesses. Other procedures regarding ethical conduct of all personnel may be necessary as well.
1) Hiring
Section 11(d)34 of the OMP Act, read together with section 16(2),35 vests the Office with the power to appoint officers; hire staff members and consultants to assist the Office in the exercise, performance and discharge of its powers, duties and functions. Since the Act only lays down broad recruitment powers, the Office should create staff recruitment schemes to guide the recruitment process. The rules should stipulate: (1) the principles on which recruitment is based, (2) the mechanisms for recruitment, (3) the categories of officers needed by the OMP and (4) the skills required of each officer. Recruitment rules should aim to ensure the recruitment of individuals that possess the required skills and competencies, and should guarantee that the recruitment process is fair and equal.
First, the Office’s staff recruitment rules should include certain overarching principles to govern the staff hiring process. These include general principles such as non-discrimination and gender parity and Sri Lankan specific consideration including proficiency in the three national languages.
a. Recruitment Principles
The Office should adhere to principles of equality and non-discrimination in recruitment and should strive for gender parity among staff members.36 This approach is especially important in the Sri Lankan context, since past Commissions of Inquiry (CoIs) dealing with missing persons have generally had insufficient female representation among staff members.37 Mere recruitment of female staff without effective gender sensitivity training (cf Chapter 2: Trainings) will be insufficient. Nevertheless greater female presence within the Office is likely to encourage higher levels of female relatives’ participation. At the same time, while gender equality should govern the overall staff recruitment process, taking a rigid approach on gender equality could be counterproductive when recruiting staff to certain Divisions. In fact, due to a number of socio-cultural factors, women are underrepresented in some professions. This pragmatic consideration should also be factored into recruitment procedures.
Second, staff recruitment rules should give priority to individuals who are competent in the two national languages or ensure that there is sufficient proficiency in both languages among staff members. Language proficiency is especially important for investigative officers, victim and witness protection officers and outreach personnel because their work profiles require them to engage directly with individuals and/or work with communities at the grassroots level.38
Finally, staff recruitment rules should give preference to individuals with a sound understanding of the geography, history and culture of the districts from which the most number of missing persons’ cases were reported.39 Such specialized knowledge will often be important for identifying gravesite locations and for carrying out specialized outreach activities in such districts. One way of achieving this goal would be for the staff recruitment rules to specify that a quota of the Office’s staff be recruited from the districts most affected by disappearances. However, taking this approach may compromise the Office’s ability to recruit the most competent personnel for its work, as some skills may not be readily available in the same proportion in all the regions or districts. Notably, the Commission of Investigation on Enforced Disappeared Persons (CIEDP) in Nepal adopted a more prudent approach. In calling for applications, the CIEDP relied on data provided by the Peace Ministry of Nepal and concentrated its application process in the twenty-one districts in which the highest number of disappearances had taken place.40 Under this latter approach, the CIEDP ensured that skill and competency were the primary criteria of recruitment, although special attention was paid to advertise the positions in the most affected districts.
b. Skills Needed by OMP Officers
The OMP Act provides for a Secretariat that will be in charge of the Office’s administration.41 Office administration would require individuals who are capable of organizing the Office’s internal and external coordination needs. One key internal need of the OMP would be the development and framing of rules, guidelines and procedures for the various Office activities. This task would require a high level of coordination among different divisions and units within the OMP. The Office would also need to cooperate and liaise with many external entities, including various international or non-governmental organizations, governmental/provincial/local authorities and family member associations in order to fulfil its mandate. The Office Secretariat should therefore consist of individuals who are experienced administrators, with strong interpersonal skills, negotiation skills and sound judgment.
The OMP’s Tracing Unit should include investigators with technical and forensic expertise.42 Ideally, investigative officers recruited by the Office will also have adequate expertise in relation to handling testimony from the victims’ relatives and other witnesses. Furthermore, since the Act also envisages the initiation of an investigation on the basis of past CoI collected data,43 investigators will need to approach relatives of missing persons, potential witnesses and law enforcement officials identified through previously collected information. Therefore, individuals who have had prior fieldwork experience related to missing persons would serve as assets to the Tracing Unit. One option would be for the Office to tap into personnel who were investigators or data gatherers in Sri Lanka’s past CoIs.44
While the OMP Act does not empower the OMP to carry out excavations and exhumations of mass graves, section 12(d) does provide that the OMP may act as an observer pursuant to applying to the relevant Magistrate’s Court for an order of exhumation or excavation.45 In its recommendations to Lebanon’s Disappearance Commission, the International Center for Transitional Justice (ICTJ) has observed that this task would require a fully-fledged forensic team comprised of archaeologists, site supervisors, geologists, photographers and site workers.46 The same team would be required for monitoring the excavation and exhumation. Additionally, the forensic team should have forensic doctors and anthropologists within its ranks in order to carry out on-site evaluations of exhumed human remains or monitor the evaluations to ensure compliance with all protocols.47
The Office should also recruit individuals who are experts in managing and securing its central database (cf Chapter 8: Data Storage). The experience in Bosnia and Herzegovina (BiH) shows that database management generally requires thorough review of database entries in order to avoid duplication of data gathered from multiple sources.48 Such a review process is critical in Sri Lanka because data will be gathered from numerous CoIs, the International Committee of the Red Cross (ICRC), NGOs and other institutions, organizations. After such review, a verification process must ensure that the data within the database is consistent with other available records on missing persons.49 Both these tasks would require an efficient team of database administrators. Securing the integrity of the central database would require cyber security experts who should be able to design an appropriate database security methodology and also ensure efficient recovery, back-up and troubleshooting processes.50
In addition, since the OMP Act provides for an autonomous and independent Victim and Witness Protection Division (cf Chapter 3: Witness Protection) it is important for this Division to have its own dedicated rules for staff recruitment akin to recommended Office staff recruitment rules. Victim and witness protection requires a high degree of expertise and competence on multiple fronts. Therefore, entities dealing with victim and witness protection must have a multidisciplinary staff composition. The United Nations Office on Drugs and Crime’s (UNODC) Good Practices on Witness Protection51 as well as the Santiago Guidelines on Victim and Witness Protection (Santiago Guidelines) stress the need for victim and witness protection programmes to have individuals from diverse fields, including personal protection, handling of weapons, psychology, health care, social work and human rights law. Similarly, the International Criminal Court’s (ICC) Rules of Procedure require the Court’s Victim and Witness Protection Unit to have personnel ranging from those providing protection and security to personnel who have expertise working with children, the elderly and persons with disabilities.52 The ICC Statute also requires that its Victim and Witness Protection Unit have individuals who are experts in assisting trauma victims.53
Finally, the OMP Act states that the Division ought to make welfare services, including psychosocial support, available for victims, witnesses and relatives of missing persons who engage with the OMP.54 Therefore, the Division must also be staffed with social workers, counsellors and psychologists.
The recommended staff recruitment rules of the OMP must specifically provide for the recruitment of competent individuals from the wide range of fields mentioned above.
c. Vetting Procedures
Staff recruitment rules should stipulate a thorough vetting procedure for all recruited individuals. This vetting procedure should ensure that individuals recruited by the Office are free of serious criminal records and allegations of human rights violations.55 The presence of such a vetting procedure will be vital to ensure long-term public confidence in the Office. However, officers should also be mindful of cases where individuals may have been arrested or imprisoned due to political or other improper motives. It is imperative for the Office to keep these realities in mind when implementing its vetting procedures to ensure that individuals who have been dealt with unjustly in the past are given a fair opportunity of working with the OMP. In this respect, the Office must establish clear criteria for vetting its personnel and set up a Panel to assess the seriousness and credibility of any allegations against applicants.
In addition, depending on the position, it may be necessary to ensure that individuals recruited by the OMP have a very high degree of integrity and are able to maintain confidentiality.56 This condition is essential because witness safety depends largely on whether the OMP personnel can safeguard protected persons’ confidentiality (cf Chapter 3: Witness Protection). It is also important for personnel who will be directly in contact with relatives of missing persons to be able to empathize with their experiences. For this reason, the OMP may carry out psychological profiling of candidates in order to gauge whether they possess these capabilities. It must also ensure strict non-disclosure clauses in employment contracts and similar contracts for services.
2) Code of Conduct
The OMP Act only has a limited number of provisions to regulate the staff conduct. It contains broad and overarching provisions regarding non-discrimination,57 as well as provisions proscribing certain types of serious misconduct. For instance, the section in the Act dealing with offences states that any person who “threatens, intimidates or improperly influences, or attempts to threaten, intimidate or improperly influence any person who has co-operated, or is intending to cooperate with the OMP, will be in contempt of the Office.58 OMP Members, officers and staff will be regarded as public servants to whom the Penal Code and Bribery Act provisions would be applicable.59 These provisions aim to prohibit serious misconduct that would violate Sri Lanka’s Penal Code or bribery laws, rather than regulating the OMP staff’s day-to-day conduct.
To complement the existing legal regime, the OMP should formulate and adopt a code of conduct that delineates how the OMP staff ought to interact with individuals who engage with the Office on a day-to-day basis.60
In order to determine the substance of a code of conduct, it may be appropriate to consider values and principles that generally govern the work of truth commissions. The ICTJ has observed that truth commissions ought to abide by values and principles such as respect for human dignity, independence, impartiality, integrity and professionalism. These principles ought to form part of a binding code of conduct for any truth commission.61 In similar vein, the OMP could incorporate these values and principles in a binding code of conduct for its staff members. However, in framing this code, the Office should consider some of the challenges Sri Lanka faces and should pay particular attention to the issues that have plagued past CoIs. As noted by the Consultation Task Force on Reconciliation Mechanisms in its Interim Report on the OMP, Sri Lanka’s past missing persons’ inquiries have been marred with allegations of officers asking relatives of missing persons for bribes (including sexual favours) in order to reveal details about their missing relatives.62 Furthermore, there have been allegations of insensitivity and rudeness levelled against officers of CoIs, as in the Paranagama Commission.63
Therefore, the proposed code of conduct should explicitly address the patterns of behaviour that have marred past CoIs, whilst also drawing on best practices internationally. The OMP could adopt a binding code of this nature under its section 26(1) powers.64

Chapter 2: Trainings

The OMP must ensure that staff members acquire the required skills and knowledge of the rules of conduct. Additionally, staff members must be trained on how to contextualize their skills for the work of the OMP. Broadly speaking, the OMP must train its entire staff on gender sensitivity, ethical conduct and sensitivity toward vulnerable persons, including children and victims of violence. Further, integrity and professionalism should be standards expected of any person working with the OMP. Additionally, the OMP must carry out professional trainings to develop and enhance the technical skills of investigators, analysts, data officers and protection personnel.
This chapter specifically examines training requirements of OMP staff, including: ethical conduct and gender sensitivity training; general professional training; and specific professional training. General professional training consists of training regarding handling and preserving physical evidence, data security, as well as additional processes and protocols. Specific professional trainings cover: interview skills; on-site investigation techniques; data management; forensics; analysis; and victim and witness protection. Each type of training will be discussed in turn.
I. Ethical Conduct and Gender Sensitivity
The Interim Report of the Consultation Task Force on Reconciliation Mechanisms notes that, women will be the primary demographic that engages with the OMP.65 In recognition of this reality, the Act empowers the Office to frame and issue broad gender sensitive policies for its staff to follow.66
However, comparative experience in Sierra Leone, Ghana, Liberia and Timor-Leste indicate that transitional justice mechanisms cannot rely merely on overarching policy guidelines to achieve gender sensitivity in their work. Truth commissions in each country carried out extensive gender sensitivity training programmes that gave specialized attention to each officer within the truth commission.67 These programmes aimed to educate staff members about international norms relating to gender-based violence and on gender sensitive approaches to data gathering and interviewing.68 The implementation of such specialized training programmes, coupled with a recruitment policy based on gender equality (cf Chapter 1: Structure and Staffing), will be critical toward promoting adequate gender sensitivity among the OMP staff.
The ICTJ has observed that gender sensitivity training must be continuous and on-going.69 Gender sensitivity training is often carried out with enthusiasm at the start of a mechanism’s term of office, but gradually fades in importance once the mechanism begins concentrating on its core mandate. This fading enthusiasm results in later recruits not having the same level of gender sensitivity as earlier recruits. One way of addressing this inequality would be for the mechanism to establish a specific unit for gender-related issues. For instance, Colombia’s National Commission for Reparation and Reconciliation (CNNR) established a Transversal Unit for Gender and Specific Populations that concentrated on training the regional staff of the CNNR on gender sensitiveness and women’s rights.70
Nonetheless, some may question the wisdom of establishing a specific unit to deal with gender, since it often results in gender being regarded as the exclusive responsibility of the gender unit to the detriment of mainstreaming gender sensitive approaches throughout an institution. Indeed, due to this perception, transitional justice mechanisms that have set up a specialized gender unit often failed to incorporate gender concerns throughout their work and structure.71 As a result of these past failures, truth commissions, such as the National Reconciliation Commission of Ghana, have opted to streamline gender concerns into the entirety of the Commission’s work and structure. The Commission in Timor-Leste has taken the mixed approach of having a specific gender unit as well as streamlining gender concerns into its overall activities.
The Office should incorporate the best mechanism to ensure gender sensitivity in all departments throughout the Office’s operations. While a Gender Unit would be integral to keeping gender sensitivity on the Office’s agenda, once the novelty of the initial training period wears off, the Office should not regard gender sensitivity as being the sole responsibility of the Gender Unit.
Therefore, as an immediate measure, the OMP should begin formulating a gender sensitivity training programme that draws inspiration from comparative programmes elsewhere (i.e. Sierra Leone, Ghana and Timor-Leste). At the same time, the Office should tailor the training programme to address challenges faced by past CoIs in the area of gender sensitivity. Subsequently, as a long-term measure, the OMP could opt to utilize its powers under section 11(e) and establish a Gender Unit. This unit can ensure that gender sensitivity remains on the agenda of the OMP even after it has begun working on its core mandate of investigations.
II. Professional Trainings
In order to ensure the highest standards of professionalism and quality work, the OMP should engage in a number of professional trainings. Different types of professional trainings would be suitable depending on the division/unit to which the personnel belongs. However, it is also paramount that staff members from all divisions/units receive training regarding the handling and preservation of physical evidence and the security of digital data and physical evidence. In addition, members of the various divisions/units should also have sound knowledge of how their work contributes to the overall mandate of the Office and complements the work of other units. In this respect, all staff must be trained in protocol compliance to ensure various units’ collaboration.
1) General Professional Trainings
Tracing investigations involve the collection, centralization and analysis of large quantities of data. Maintaining the integrity and security of these data requires the training of all of the Office’s staff. Joint trainings for OMP staff from different units and divisions could also enhance overall staff understandings of OMP processes and protocols, and could facilitate collaboration among various units and divisions.
a. Handling and Preservation of Physical Evidence
The Office may receive, procure, (cf Chapter 5: Receiving and Procuring Information) or recover physical evidence from suspected places of detention, other premises and mass graves (cf Chapter 6: On-Site Investigations). Proper handling and preservation of physical evidence is essential for both the Office’s own investigations and any subsequent criminal investigations. Thus, the Office must train all staff members on best practices and protocols for the packaging, labelling, classifying and preservation of physical evidence. This training should include specific requirements with regard to documenting the chain of custody (cf Chapter 5: Receiving and Procuring Information and Chapter 6: On-Site Investigations).
b. Security of Data and Evidence
During the course of its investigations, the OMP is likely to receive confidential and highly sensitive information or physical evidence such as DNA swaps. In light of this, the Office must train all staff members in applying protocols regarding the security of digital data and physical evidence (cf Chapter 8: Data Storage) to prevent the manipulation of physical evidence by unauthorized personnel or unintentional breach of confidentiality.
c. Processes and Protocols
Finally, all Office personnel must receive trainings on the Office’s overall mandate, structure and functioning, the structure and functioning of each division and unit and protocols and processes aimed at ensuring the flow of information and the smooth collaboration of all divisions or units.
2) Specific Professional Trainings
The Office must also provide specific trainings tailored to the various roles and functions of each division or unit.
a. Interviewing Skills
In the course of their work, the OMP investigators will receive and procure evidence from relatives of missing persons and other potential witnesses. Interviews for tracing investigations require a range of specific knowledge and expertise. Investigators will have to interact with a wide variety of witnesses, including relatives of missing persons for whom the interview may be difficult or even traumatic, as well as persons implicated in a disappearance who may subsequently become key witnesses in criminal processes. Thus, trainings in interview techniques are crucial to the success of the OMP investigations and to that of subsequent criminal proceedings.
Missing persons’ interviews may be traumatic to both the interviewer72 and the interviewee.73 During the interview, the interviewee may be required to recollect intimate details about the missing person and describe the circumstances surrounding the disappearance. Moreover the respondent being interviewed could often be a person with a disability, a child or a senior citizen. The Office will therefore need to train its investigative staff on sensitive interviewing techniques that safeguard the dignity of the respondents. In addition, interviewers must be trained to recognize signs of trauma. Finally, interviewers may need to conduct interviews through electronic media, such as video conferencing. Interviewers should therefore be given specific training on how to adapt their existing skills for long-distance interviews and depositions with victims, witnesses and family members.
In addition, investigators must obtain witnesses’ informed consent before proceeding with an interview. To this end, they must inform witnesses of all potential uses of the information. Finally, they must ensure that the information they obtain is comprehensive, detailed and accurate. Depending on the type of interviewee, investigators will have to test and assess the credibility of the testimony (cf Chapter 5: Receiving and Procuring Information). While interviewers may have to ask a number of questions to verify an interviewee’s accuracy and credibility, interviewers must avoid asking leading questions. These interview techniques are best acquired through trainings of the appropriate skills.
b. On-Site Investigations Techniques
In addition to the training on the handling and preservation of evidence, OMP investigators must also receive training on the methodology and protocols for conducting and documenting on-site investigations. Specific trainings include techniques for searching suspected detention sites and other sites containing relevant evidence and the excavation and exhumation of identified gravesites for which the OMP may be an observer (cf Chapter 6: On-Site Investigations). These trainings are essential to ensure that the OMP work assists rather than hinders future criminal investigations.
c. Data Management
The OMP Act provides for the establishment and management of a central database on missing persons.74 Managing this database would require recruiting database administrators trained on the proper classification of different types of data (traditional ante mortem and post mortem data, DNA ante mortem and post mortem data) and the entry of such data into the Office’s central database (cf Chapter 7: Identification of Human Remains). The database administrators would also need to receive training in data entry review. Database officers with such expertise will be better placed to cross check data accuracy and prevent any erroneous duplication within the data entry process.
d. Forensic Training
Tracing investigations require collecting, handling and analysing biological reference samples and human remains75 (cf Chapter 7: Identifying Human Remains). If the OMP resorts to DNA identification methods, its staff must collect biological reference samples from families. While the OMP may outsource DNA sample analysis, the collection of ante mortem DNA data is likely to be done by the OMP and will therefore require specific training. For example, staff members collecting reference samples should be trained in interview techniques aimed at identifying and recording the nature of biological relationships and in taking and handling biological samples.76 Staff members should also be trained in health and safety precautions in relation to collecting and handling biological samples.
e. Analysis Training
The OMP will have to collect, process and analyse large amounts of information. In addition, tracing investigations often necessitate the use of sophisticated databases that will assist in generating leads and hypotheses, facilitate categorizing information and comparing relevant data. Therefore, analysts will have to learn how to adapt their skills to the specific needs of tracing investigations in addition to learning how to use the database, and inputting, classifying and analysing collected data.
f. Victim and Witness Protection Training
A successful victim and witness protection programme requires individuals who have diverse skills and capabilities. For instance, the UNODC’s Good Practices on Witness Protection emphasizes the need for training and skills development of personnel within victim and witness protection units to be multidisciplinary and coordinated.77 Protection officers must perform multiple functions in order to adequately safeguard a victim or witness. Thus, a multidisciplinary training programme is a prerequisite for the success of the OMP’s Victim and Witness Protection Division.
To illustrate by example, Croatia’s successful Witness and Victim Support Offices training programme was multidisciplinary. The programme’s main features included: (1) careful consideration of practices in other countries, (2) the adjustment of such insights to suit the Croatian context and (3) the collaborative design of the training programme with the expertise of the UN.78 Accordingly, after a thorough and systematic analysis of local conditions and best practices internationally, Croatia collaborated with the United Nations Development Programme (UNDP) and designed a training programme with three core modules that concentrated on developing the skills of victim and witness protection personnel in the areas of legal knowledge, psychology and practical training (security and weapons training).79
In addition, the European Commission’s Standards in Witness Protection and Collaboration with Justice (2005) emphasizes the need for officers to be trained in the sensitive treatment of victims and witnesses and in humane interrogation methods.80 Furthermore, the Division should consider the Commonwealth Secretariat’s General Recommendations on Victim Protection when designing its training programme. This is mainly due to the Secretariat’s training-related recommendations lending substance to what the practical training module in a given training programme ought to be. The Secretariat recommends practical training to be done in two stages. The first stage, known as “basic operator training,” eases protection personnel into the programme by introducing them to the basics of close protection training, weapons handling and driver training.81 The second stage, known as “on-going skill set development,” takes a more specialized approach to training by enhancing the crisis management skills, advanced weapons training skills, close quarters battle techniques and surveillance capabilities of the personnel.82 This staggered approach to protection training will give the Division the flexibility it will need to tailor its training programme for protection staff with different capacities.
Moreover, the OMP Act states that the Division may provide welfare services, including psychosocial services, to victims, witnesses and relatives of missing persons.83 Therefore, the training programme should have a specific module dedicated to its trauma management experts and counsellors. This module should ensure that trauma management experts and counsellors of the Division are adequately equipped to provide welfare services.
The Division must also consider the local context and local needs when designing its training programme based on the best practices above. For instance, the training programme should ensure that victim and witness protection personnel are adequately trained in the two national languages (Sinhalese and Tamil), since many victims, witnesses and their family members are unlikely to be conversant in English. Furthermore, personnel directly involved in protection activities should have a fairly extensive knowledge of the geography, cultures and practices of the different areas in Sri Lanka, especially if protection measures like temporary relocation or permanent relocation with covert surveillance are adopted in relation to high-risk victims and witnesses.84
Finally, two special training challenges warrant separate attention. First, victim and witness protection requires identifying and assessing threats toward individuals and matching appropriate protection measures to meet those threats (cf Chapter 3: Witness Protection). Therefore, the training programme must ensure that individuals in charge of this complex threat identification and protection matching process have the adequate skills and knowledge to carry out this task.85 Second, any victim and witness protection programme is bound to encounter individuals with special vulnerabilities like widows, persons with disabilities, senior citizens, children, or survivors of sexual or gender-based violence. Therefore, the Division’s training programme must ensure that its personnel receive specialized training to address specialized needs of victims, witnesses or family members.86

Chapter 3: Witness Protection

Sri Lanka enacted a comprehensive, yet flawed, Victim and Witness Protection (VWP) Act in 2015.87 The OMP Act provides for an independent victim and witness protection regime, specifically dedicated to victims, witnesses and relatives of victims who engage with the Office.88 According to OMP Act section 18(1), “there shall be a Victim and Witness Protection Division within the OMP that shall protect the rights and address the needs and concerns of victims, witnesses and relatives of missing persons.”89 The Act empowers the Victim and Witness Protection Division of the OMP (the Division) to take all appropriate measures to ensure the protection of victims and witnesses who engage with the Office.90 In addition, section 13(1)(g) calls for the Office to “develop and enforce a system for victim and witness protection.”91
Some may question the need for the OMP to have its own victim and witness protection system, given that the Victim and Witness Protection Act already establishes a National Authority (VWP Authority) for the Protection of Victims of Crime and Witnesses92 and a Victims of Crime and Witness Assistance and Protection Division (VWP Division).93 Under the VWP Act, the VWP Authority has a mandate to “develop, adopt and implement a scheme for providing assistance and protection to victims of crimes and witnesses.”94 The VWP Division, on the other hand, is in charge of designing and implementing a Victim and Witness Assistance Program.95
Three important reasons, however, justify the existence of an autonomous Victim and Witness protection scheme within the OMP. First, the VWP Act only applies to witnesses appearing before a court, a commission of inquiry, a special presidential commission of inquiry, the Bribery Commission or the Human Rights Commission of Sri Lanka.96 The OMP does not fall within any of these categories.97 Therefore, a witness before the OMP may find it extremely challenging to seek protection under the VWP Act.98
Second, as noted previously,99 the VWP Act does not guarantee the VWP Division’s autonomy and independence from the hierarchy of the police.100 Moreover, the VWP Act provides for ex-officio appointments to the VWP Authority,101 which cast the independence of the Authority in doubt.102 This problem compounded by the fact that the Act has not been amended to provide for appointments to the Authority to be made on the recommendations of the Constitutional Council. Sri Lanka is yet to undertake a comprehensive vetting policy for state institutions to remove individuals who have been implicated in—or have covered up—past violations. In this context, it would be imprudent to entrust the VWP Authority and VWP Division with the sole responsibility for providing victim and witness protection. This would likely deter victims and potential witnesses from engaging with transitional justice institutions including the OMP.
Third, an autonomous victim and witness protection system within the OMP will likely better serve victim and witness interests. In fact, it may be cumbersome, confusing, and potentially traumatic for victims and witnesses who are at risk due to their engagement with the OMP to seek protection from another institution. In contrast, an independent OMP protection scheme would ensure greater access and efficiency.
Nevertheless, a Division under the OMP, which would only exercise the delegated power of the OMP, would not have the same coercive power pertaining to law enforcement and criminal investigations that any Authority vested by law with the necessary powers would have. Therefore, witnesses must be at liberty to seek the protection of the VWP Authority and VWP Division in appropriate cases. However, this would require legal and other reforms that ensure greater independence of the Authority and Division established and ensure application of the VWP Act to the OMP.
This chapter first examines the scope of victim and witness protection. It proceeds with the analysis of specific protection measures including identity shielding measures and confidentiality, witness management methods, strengthening self-protection capacities, and identity change and permanent relocation.
I. Scope of Protection
While the OMP Act contains broad provisions authorizing victim and witness protection, the Office and its Victim and Witness Protection Division must determine the scope and nature of protection, including qualifying witnesses, protection measures responding to levels of threat and the temporal scope of the protection.
1) Qualifying Witnesses
According to OMP Act section 18(3), the Victim and Witness Protection Division is under an obligation to provide protection to witnesses who engage with the OMP.103 The interpretation section of the Act, however, does not give any guidance as to who would constitute a witness for the purposes of the Act.
The Model Witness Protection Bill of the United Nations Office on Drugs and Crimes (UNODC) defines a witness as a person who has made a statement, or who has given or agreed to give evidence in relation to the commission or possible commission of a serious offence.104 The Bill’s definition of a witness also extends to family members and other persons of importance to the witness.105 The extension of witness protection to witness’ family members is a common feature of legislation of many countries, including Indonesia,106 BiH107 and Kenya.108
In Sri Lanka, many missing persons cases are alleged enforced disappearances. Given that the crime of enforced disappearances is by nature secretive and information surrounding the disappearance is known only by the perpetrators, a key question for the Office would be whether its witness protection regime should extend to alleged perpetrators, criminal suspects and persons already convicted and serving a sentence. A few national laws and executive decrees bring alleged and convicted perpetrators within the ambit of witness protection schemes established in those countries. For instance under Peru’s Law No. 27378, witness protection extends to persons who may be the subject of preliminary investigations in a criminal proceeding and persons who have been accused or convicted of specific crimes.109 The situation is the same in Colombia where persons who have been charged, tried, or convicted of a crime are eligible for witness protection as long as they possess information that is useful to an investigation.110
Thus, the Division must devise internal rules that define the term “witness” similar to that of the UNODC and stipulate the categories of witnesses eligible for protection under the Act.111 These rules should, at a minimum, ensure that family members and other persons of importance to the witness, as well as witnesses implicated in criminal proceedings (in relation to the offences of kidnapping and abduction),112 are eligible to seek witness protection before the Division.
2) Threat Assessment and Response
The broadly worded OMP Act calls for the Division to provide protection to all victims and witnesses who engage with the Office.113 If the Division is to fulfil this task, it must formulate procedures to determine levels of threat faced by victims or witnesses engaging with the Office. Subsequent to this threat assessment, the Division would have to decide on appropriate protection measures to respond to the given threat. This approach to victim and witness protection has been endorsed by the Commonwealth Secretariat in its General Recommendations on Victim Protection (2011).114 According to these recommendations, a protection measure should always be implemented solely in response to an assessed threat to a victim or witness.115
Often, national legislation establishes guidelines to assess the level of threat to a victim or witness in order to determine eligibility for victim and witness protection.116 While threat assessment guidelines are generally used to determine whether a victim or witness is eligible for protection, the Division can use these guidelines to assess the level of threat faced by victims and witnesses and determine appropriate protection measures. The UN and international courts also endorse this practice.117
Commonly identified criteria considered in threat assessments are:
• The existence of threats to the victim’s or witness’ life118 and/or property;119 and
• The foreseeability of acts of reprisal or intimidation, or the fact that acts of reprisal or intimidation have already been carried out against the victim or witness.120
Other criteria include:
• The victim or witness’ personality, personal situation and psychological fitness to receive protection;121 and
• The seriousness of the offence to which the victim’s or witness’ statement or evidence relates.122
Furthermore, the threat assessment would generally analyse the source from which the threat emanates, and try and gauge whether the source has the organizational strength and capacity to carry out the threat.123
The Division must account for these factors when carrying out its threat assessment process. The OMP Act empowers the Office to “issue guidelines for its staff members, in order for such staff members to effectively carry out their functions under the Act.”124 Using this power to adopt threat assessment guidelines will enable the Division to carefully match its protection measures to the exiting level of threat to a victim or witness.
Implementing protection measures only after carefully assessing the viability of a threat is important due to the costly nature of victim and witness protection. For instance, as observed by the UNODC, a significant amount of funding needs to be expended for the food, accommodation, transportation and relocation needs of victims and witnesses.125 The Division would therefore need to conduct a thorough threat assessment for each witness and victim who approaches the OMP in order for it to be able to allocate its resources efficiently.
3) Temporal Scope of Protection
The OMP’s next key task would be to determine the temporal extent of the protection it would be granting to victims and witnesses who engage with the OMP, and draft its rules accordingly. International best practice126 and comparative domestic legislation127 suggest that victim and witness protection measures ought to be made available before, during and after formal proceedings, whether such proceedings are judicial proceedings or proceedings before other investigative bodies, such as truth and reconciliation commissions (TRCs) or Disappearance Commissions.
Section 12 (a) provides that the OMP may “receive, from any relative of a missing person, or any other person or organization, complaints relating to missing persons.”128 Therefore, suitable protection measures must be initiated as soon as an individual files a complaint to the Office. The OMP Act also allows the Office to initiate an inquiry or investigation on the basis of information gathered by past Commissions of Inquiry (CoIs).129 Information gathered by these CoIs may contain details about victims and witnesses. However, given the sheer volume of CoI information, a preliminary screening of the information to identify victims and witnesses who should benefit from the protection program may not be feasible. Nevertheless, the Office should initiate appropriate protection measures as soon as it approaches, in the course of its investigations, victims or witnesses identified by past CoIs.
The Division’s internal rules would also need to specify the procedures to follow when initiating a protection programme. In particular, the UNODC130 and the International Commission of Jurists131 recommend that a memorandum of understanding (MoU) should be concluded between the entity providing protection (the Division in this case) and the party receiving protection. A typical MoU contains the rights and obligations of a protected person.132 Generally, the MoU would impose obligations on a protected person (in the case of change of identity and/or relocation, this would typically include non-communication with family, staying hidden, obeying orders of the protection unit, and other related policies) and stipulate that the protection programme would terminate in the event of a breach of these obligations.133 Given language barriers in Sri Lanka, the Division’s internal rules must make provisions for the translation and explanation of MoUs to individuals before entering into a protection programme.134
Determining when to terminate witness protection requires additional consideration, especially given that the danger to a victim or witness may continue years after formal proceedings have been concluded. At the same time, victim and witness protection measures are often costly and resource intensive. In light of this, the Division must have clear rules to determine when a protection programme can be terminated, having regard to the competing variables mentioned above. The UNODC’s Good Practices135 and the Commonwealth Secretariat’s recommendations136 state that it is only advisable for termination of a victim and witness protection programme when:
• The protected party’s actions and behaviours compromise the programme’s integrity;
• The protected party breaches the MoU;137
• The seriousness and risk of the threat to the protected party has lessened; or
• The victim or witness voluntarily leaves the programme.
The first two conditions mentioned above are justifiable grounds to immediately terminate a protection programme because a witness’ breach of his/ her obligations could jeopardize the entire protection programme and other witnesses’ safety. The Office should stipulate clear criteria for what constitutes behaviour that endangers the programme, so that protected persons understand what actions to avoid.
When the termination of the protection programme is on account of threat reduction, the protection scheme must gradually phase out its protection measures. One possible way of phasing out a protection programme would be for the Division to strengthen the self-protection capabilities of victims and witnesses at later stages of the protection programme. Another way to smoothly phase out the protection programme would be for the Division to periodically liaise with formerly protected persons to ensure that the threat level remains low to non-existent.
II. Identity Shielding Measures and Confidentiality
Protection measures that shield the identity of victims and witnesses are a staple in most victim and witness protection programmes due to their inherent flexibility.138 Such measures are often sufficient to meet the protection needs of victims and witnesses. At the same time, identity shielding can be used in tandem with other more stringent protection measures to meet more serious threats levelled against protected persons.139
The OMP Act provides for measures aimed at reducing witnesses’ exposure to the public or at shielding their identity. In particular, according to section 12(c)(iv), the OMP is entitled “to establish a process to accept confidential information or information in camera, if required, to help ensure personal security for victims and witnesses.”140 The provision of information in camera generally aims at reducing the psychological stress on witnesses by limiting their exposure to the public. However, it does not necessarily shield the identity of witnesses. Confidentiality, on the other hand, is an identity shielding measure available in most protection programmes.
Confidentiality is a key measure of any witness protection programme. However, confidentiality agreements—depending on the scope and types of witnesses they cover—may be inimical to prosecutorial efforts or stand in the way of families’ right to truth. It is therefore vital for the Division’s internal rules to widen the identity shielding options available to the Office, since identity shielding is a flexible protection measure that can be adapted to suit most protection needs.
The operational rules of the Nepalese CIEDP, for example, empower the Commission to safeguard the victim and witness anonymity through voice distortion technology and by recording their statements in remote locations.141 Furthermore, the Commonwealth Secretariat’s General Recommendations on Victim Protection encourages States to use face distortion technology and pseudonyms to expunge any identifying elements within the information that victim or witnesses provide.142
In addition, while the only identity shielding measure available to the office is the granting of confidentiality, its scope is not defined in the Act and the term “confidential information” used in a number of instances is subject to interpretation.143 This ought to be clarified in the internal rules of the OMP.
1) Scope of Confidentiality
Comparative studies show that, generally, domestic victim and witness protection laws only extend confidentiality to the non-disclosure of the protected person’s identity144 and protection measures.145
Determining the material scope of confidentiality is critical and should be guided by two considerations: (1) the safety of witnesses and (2) the fulfilment of the mandate by the entity providing confidentiality. Thus, the Division must strike a balance between these two potentially competing imperatives: families’ right to truth and witnesses’ protection.
One key function of the OMP is to inform the relatives of missing persons about the fate of their loved ones.146 If the scope of confidentiality is interpreted broadly and covers information provided by witnesses, this may prevent the fulfilment of its function by the OMP. Therefore, confidentiality should not extend to the information witnesses provide unless there are compelling reasons to do so. In many cases, the identity of the witness would be appropriately shielded by expunging any identifying information from the witness’ testimony. Therefore, the decision to extend the scope of confidentiality to all information provided by a witness ought to remain an extraordinary and exceptional measure and should be justified in light of the circumstances. While, as a matter of principle, confidentiality should not extend to all information victims and witnesses provide, the Division is under a legal obligation to inform victims and witnesses of all uses, or potential uses, of the information.147
The comparative study of relevant domestic legislation may also inform decisions regarding the temporal scope of confidentiality. The BiH Witness Protection Program Law148 and the Witness Protection Ordinance of Hong Kong149 stipulate that confidentiality obligations remain even after a protected person has ceased to be a part of the protection programme. Therefore, the Division must include internal rules that extend the temporal scope of confidentiality obligations on its officers to include post-proceedings.
2) Breach of Confidentiality
The OMP Act states that a breach of confidentiality is an offence in which the offender stands in contempt of the OMP,150 liable to be tried and punished by the Court of Appeal of Sri Lanka, as if it were contempt of court.151 This provision could be used against Victim and Witness Protection Division staff members who breach the confidentiality of a protection programme.
The Division should also consider having additional sanctions for officers found to be in breach of confidentiality. Comparative victim and witness protection laws in Indonesia,152 Philippines153 and Hong Kong154 impose sanctions on victim and witness protection officers who breach confidentiality. These sanctions include imprisonment, heavy fines and the exclusion of such individuals from holding public office. Since the OMP Act does not provide for such sanctions, one option would be for the Division’s internal rules to make a breach of confidentiality by one of its officers a ground for terminating the services of such officer.
Additionally, the complaint mechanism recommended for the Office (cf Chapter 10: Oversight) should allow a victim or witness whose confidentiality has been breached to file a complaint to the Office. The Office could then investigate the matter and initiate contempt proceedings against staff members and/or terminate its services as appropriate. Breaches of confidentiality should also trigger a reassessment of threat and adoption of additional protection measures as necessary.
3) Confidentiality Exceptions
The Act states that if a witness consents, the identity of such a witness could be disclosed by the OMP to law enforcement or prosecutorial authorities.155 This is seemingly for the purpose of aiding investigative and/or prosecutorial efforts, where evidence before the OMP shows that an offence within the meaning of the Penal Code or any other law has been committed. In accordance with international best practices, the Division must ensure that witness consent is informed and free of intimidation or exploitation.156 In addition, the Division must ensure that information communication does not expose the witness to risk of physical or other harm.157 Thus, the OMP’s internal rules should carefully set down the manner in which the Office’s staff should obtain consent from a witness in order to reveal his or her identity to the relevant authorities.
In addition to, or in lieu of, identity shielding measures, the Division may offer other protection measures most commonly referred to as “witness management methods”.158
III. Witness Management Methods
In some circumstances, protection measures identified above may not meet adequately threats victims and witnesses face. For instance, victims and witnesses often face risks of verbal threats or intimidation, property damage, or physical harm due to their involvement with law enforcement authorities. In Rwanda, many witnesses who engaged with the International Criminal Tribunal for Rwanda (ICTR) faced increased harassment in the form of constant stone throwing at their houses when they returned home after testifying.159 When these risks are identified, additional protection measures may often be required. These may range from witness management methods or self-protection measures to identity change and/or relocation measures.
The UNODC’s Good Practices on Witness Protection states that a protection entity should be able to deal with situations that do not amount to life threatening risks without having to resort to relocation or change of identity. Countries like Australia and Chile have adopted measures to deal with such intermediary level threats and named them “witness management methods.”160 Witness management methods could include the provision of temporary alternative accommodation,161 discreet patrolling of the protected person’s house,162 transportation of the protected person’s property to safer locations163 and the installation of alarm systems or security cameras.164
The inclusion of witness management methods within a protection programme undoubtedly gives the protection entity flexibility to meet protection needs. However, witness management methods can be mentally taxing on the protected person due to their potentially severe impact on the day-to-day life of such persons. Such methods are also highly resource intensive since they require heavy staff involvement and financial investment for their success.
The Division’s first task therefore would be to analyse the institutional and financial feasibility of all available intermediary protection measures. Subsequent to this analysis, it should opt for the most financially feasible, victim and witness friendly protection measures available under its internal rules.
IV. Strengthening Self-Protection Capacities
Self-protection schemes enable victims and witnesses to look after their own protection needs.165 Such schemes are extremely useful in contexts where the threat to the victim or witness is low or in situations where the victim or witness is unwilling to enter into a formal protection scheme. For instance, in Rwanda, a large number of victims and witnesses who engaged with the ICTR opted to protect themselves rather than enter into the formal protection programme offered by the Rwandan Victim and Witness Support Unit.166 Instead, many vulnerable witnesses decided to adopt measures for their own protection. Such measures included independent relocation or the organisation of secure and private transport to attend the ICTR hearings. However, these require financial resources that witnesses often lacked.167
Many victims and witnesses in Sri Lanka too have little faith in formal victim and witness protection schemes due to negative experiences with past CoIs.168 Even though some of these commissions provided witness protection, senior police officials led these units. This was highly problematic in a context of widespread state repression against dissenters and human rights activists, including relatives of missing persons.169 In addition, victims, witnesses and members of the protection units received threats.170 Since the OMP Act empowers the Division to take “all appropriate measures” to protect victims and witnesses,171 it is paramount for the Division’s rules to provide for self-protection assistance measures, which should include financial support to a victim or witness for independent relocation,172 or victim and witness training in independent security management for them to respond to potential threats. By making these measures available, the Division will be able to ensure that even the most sceptical victims and witnesses receive minimum protection.
V. Identity Change and Permanent Relocation
Change of identity173 and permanent relocation174 are well-known protection measures available in most domestic laws dealing with victim and witness protection. Identity change and permanent relocation are often applied simultaneously as protection measures. The former encompasses creating a new personal profile for a protected person and concealing his or her old identity. Under the latter, the protected person who may or may not have a new identity is placed in a new community that is far removed from the threat endangering him/her.
The UNODC’s Good Practices on Witness Protection states that such protection measures generally are reserved for victims or witnesses facing extremely high risk of danger.175 Victims and witnesses who have complained to and testified before Sri Lanka’s past disappearance commissions have often faced repeated threats and acts of violence due to their involvement in those processes.176 Therefore, these two measures would be necessary to ensure effective victim and witness protection.
Changing an individual’s identity requires the provision of new identity documents, such as identification cards, passports, driver’s licenses and birth certificates. This necessitates coordination among the Division and other governmental agencies responsible for issuing personal documents, such as the Department of Registration of Persons, Department of Immigration and Emigration and the Department of the Registrar General. The best option would be for the Office to utilize its powers under section 11(a) of the Act and enter into co-operation agreements with the relevant entities in order to facilitate identity changes.177 Notwithstanding this, it may be necessary to amend existing legislation to empower the OMP and/or other relevant authorities to effect these protection mechanisms.
The UNODC’s Good Practices observes that smaller countries with relatively close-knit communities find it challenging to implement successful identity changes and permanent relocation measures.178 These guidelines recommend that such countries consider international relocation as a protection measure within their victim and witness protection schemes. International relocation is often done pursuant to an agreement between the authorities responsible for victim and witness protection in two countries.179
According to the OMP Act, the Office may enter into agreements with organizations, as necessary, to achieve its mandate.180 Thus, the Division should include international relocation as a protection measure, and the OMP should coordinate with foreign authorities to conclude multiple international relocation agreements with other countries in order to maximize the available options for victim and witness relocation. In particular, the OMP should enter into agreements with countries that have large populations of Sinhala and Tamil speakers where relocation would be slightly less difficult.

Chapter 4: Planning and Opening the Investigation

In order to fulfil its mandate, the OMP must rely on public agencies and private entities and identify relevant information sources and places of interest, including detention sites and potential mass graves. In this respect, the Office should map sources, stakeholders, and sites and should establish a national search plan. A national search plan would serve as a useful starting point for the Office to plan investigations and coordinate its work with that of other entities including Magistrate’s Courts that may already be carrying out investigations into the fate of missing persons.181
Once the OMP identifies relevant stakeholders, sites and sources of information, it must decide where and how to start its investigation. OMP Act section 12(a) provides that the OMP may open an investigation pursuant to a complaint, or on the basis of information received from previous commissions with a mandate similar to that of the OMP. However, given that close to 16,000 cases of missing persons have been reported to date, the OMP will have to prioritize cases or groups of related cases, taking into account its human and financial resources. The OMP Act provides some guidance in this respect. In particular, according to section 12(b), the OMP may give priority to “incidents of missing persons that have occurred most recently; incidents in which there is substantial evidence already available; or such incidents that are, in the opinion of the OMP, of public importance.”182
This chapter examines the conditions for the opening of an investigation by the OMP. It subsequently discusses options and strategic choices for the planning of the Office’s investigations and checks and balances to this decision-making process.
I. Opening an Investigation
According to the Act, the OMP may open an investigation either pursuant to a complaint or on the basis of information received from previous commissions that have inquired into allegations relating to disappearances or missing persons.183 The Act introduces some limitations ratione materiae that will have to be taken into consideration when deciding whether the case falls within the OMP’s mandate.
1) Pursuant to a Complaint
The OMP is empowered “to receive, from any relative of a missing person, or any other person or organization, complaints relating to missing persons, irrespective of when such person may have become a missing person.”184 According to section 27, relatives of missing persons include spouses; children, including adopted children, non-marital children, or step children; parents, including step-mothers, step-fathers, or adoptive parents; full or half brothers or sisters, or adoptive brothers or sisters; fathers-in-law or mothers-in-law; brothers-in-law or sisters-in-law; sons-in-law or daughters-in-law; grandchildren; and grandparents.185 In addition, other parties may also bring a complaint before the OMP. In light of this, there are no foreseeable limitations ratione personae to bringing a complaint relating to missing persons before the OMP. Therefore, under the Act, any person who, for instance, discovers a mass grave may also bring a complaint before the OMP.186
Although the OMP Act does not impose any restrictions regarding the parties that may make a complaint, in practice persons and organizations with information about missing persons may not be in a position to do so. This would be the case if they are not aware of the OMP’s mandate or if the procedure for bringing a complaint before the OMP is too cumbersome. In this respect, the OMP’s outreach activities will be essential (cf Chapter 9: Information to Families and Public Outreach). In addition, other specific measures may also be adopted to facilitate the submission of complaints before the OMP. In this respect, the OMP must ensure that its rules and guidelines are geared towards facilitating the submission of complaints. At the same time, the OMP rules must also ensure that it receives all the relevant information necessary to open a missing person’s case file.
a. Facilitating Complaints Submissions
The willingness of families of missing persons, witnesses, and institutions to engage with the OMP will depend on two factors: first, the trust that they place in the institution, and second, the Office’s ability to facilitate complaints submissions. The OMP must adopt policies geared toward facilitating the complaint-making process. First, there must be a clearly identified point of contact for individuals who approach the OMP to make a complaint. To this effect, the Office should create a Complaints Desk within the Outreach Unit.187 The Desk’s primary task would be to register all complaints. Locating the Complaints Desk within the Outreach Unit would facilitate the provision of additional information to families about the Office’s mandate and how to access the Office during the course of its investigations. Although the OMP does not explicitly detail complaint procedures, the Complaints Desk should allow for individuals to file complaints in person or via mail, email or fax. This would ensure participation of those living in remote locations or even abroad.
Other country examples may guide the OMP when seeking to establish rules for the submission of complaints. For instance, in Nepal, the law creating the CIEDP specifies that female employees should take women’s statements and testimonies to the extent they are available.188 In addition, the law also allows for testimony and statements to be provided through letters rogatory, or other electronic media through nearby government agencies. Finally, the law provides for the possibility that members of the CIEDP visit vulnerable persons such as persons with disabilities, children or senior citizens to take their complaint.190
Other commissions have also adopted measures aiming at facilitating the submission of complaints, especially by those living abroad. For instance, truth commissions in Chile and Argentina visited neighbouring countries that accepted refugees that had fled the conflict. They also set up processes to enable victims’ and witnesses’ depositions at their respective consulates.191 The OMP could adopt similar procedures as confidence-building measures and to ensure that those who may still be unwilling return to Sri Lanka out of concern for their safety are nonetheless able to bring complaints before the OMP.
b. Standard Complaint Forms
The OMP’s goal in recording a complaint should be to obtain as much information as possible to begin an investigation. However, depending on the case and the date of the disappearance, it may be difficult to obtain all information needed to assist the tracing investigation. While the OMP must attempt to obtain as much information as possible, minimum information may be needed to record a complaint. The ICRC Model Law for Missing Persons specifies that the minimum data for opening an investigation include: “a missing person’s name, place and date of birth, marital status, occupation, address, date and details of last news/circumstances of disappearance, and rank for military personnel/combatants.”192 Similarly, in Colombia, the Truth and Reconciliation Commission required at a minimum both the individual’s complete identifying information, including name and residence, as well as the facts and circumstances that led to the request.193 Besides this minimum information, the OMP must also use the complaint-making process to record information as detailed as possible regarding the missing person and the circumstances under which the person went missing. The adaptation and use of standardized forms commonly employed in tracing investigations would assist in data gathering.194 These forms should be available at the Complaints Desk and online in Tamil, Sinhala and English and must be periodically reviewed to integrate lessons learned in the process.
2) Information from Previous Commissions
According to the Act, an investigation may also be opened on the basis of information received by previously established CoIs, commissions on missing persons or commissions that have inquired into allegations relating to disappearances or missing persons.195
This provision is important to ensure continuity between the work of the OMP and that of previous commissions with similar mandates. Given that many of these commissions conducted investigations, the OMP may obtain invaluable information through these channels. In addition, opening an investigation on the basis of information received from other commissions may be preferable to calling for complaints from families who have already approached several other commissions. This protocol could prevent re-traumatization of relatives and mitigate their expectations, especially from those relatives who have already made complaints to other bodies.
However, prioritizing information received from other commissions over new complaints when opening an investigation also has significant drawbacks. The OMP may be able to obtain more detailed and relevant information on the basis of new complaints made through the standardized forms specifically designed for the OMP. In addition, as will be explained in the next chapter, sorting out the information received from previous commissions will be time and resource intensive. In light of these concerns, the OMP will have to decide whether to prioritize information received from other commissions over new complaints for the opening of an investigation. In any event, the OMP will have to devise a system to sort out duplicates. One way to do so would be to include a question regarding the submission of information to other organizations in the standard complaint forms. In addition, the Office must seek families’ consent prior to opening an investigation on the basis of information received from other commissions. In fact, there may be cases where families do not wish the OMP to be involved for fear that it would interfere with existing proceedings before Magistrate’s Courts.
3) Conditions for Continuing Investigations
OMP Act section 27 defines a “missing person” as a person whose fate or whereabouts are reasonably believed to be unknown and is reasonably believed to be unaccounted for and missing in three specific contexts. The three contexts are: 1) the conflict which took place in the Northern or Eastern Provinces or its aftermath, or the person is a member of the armed forces or police who is identified as “missing in action;” 2) political unrest or civil disturbances; and 3) an enforced disappearance as defined in the International Convention on Protection of All Persons from Enforced Disappearances.196
The question of whether a person falls within the mandate of the OMP should be a condition for opening an investigation. In practice, however, as pointed out elsewhere, preliminary investigations would be needed to ascertain whether a person is a “missing person” as per the definition in the Act.197 Interestingly, section 13(1)(a)(i) of the Act mandates the OMP to issue an interim report to relatives of missing persons where its investigations provide sufficient material to conclude that a person to whom a complaint relates is in fact a “missing person”. Thus, the Act clearly contemplates OMP investigations to determine whether a person falls within the mandate.
During these preliminary investigations, the Office will first have to determine whether it could reasonably be believed that a person is unaccounted for or that his or her whereabouts are unknown. The ICRC Model Law for Offices of Missing Persons adopts a similar standard, and states that information would be considered reliable when it leads the office to “reasonably conclude” that the person is missing.198 The threshold adopted in the OMP Act naturally lends itself to some degree of discretion. Nevertheless, the office may resort to several methods in the course of its preliminary investigation to meet this threshold.
One way to establish the reliability of a complaint is to make requests to other organizations that may have relevant information on the missing person. In Chile, the Commission for National Truth and Reconciliation first asked the Civil Registrar’s office for any documents on the missing person in question.199 The first document requested was the birth certificate of the alleged missing person to ensure that the investigation was dealing with a real person.200 Chilean Commission would also ask for death certificates, in case the individual had died in government custody unbeknownst to the family.201 The Commission then would inquire with the Electoral Register to corroborate that person’s political activity that could lead to the reason for their disappearance.202 Finally, they would check with international policing organizations to see if they could corroborate the complaint received.203
 
The OMP could resort to similar methods to ascertain whether the person went missing as a result of political unrest, civil disturbances, or as a result of an enforced disappearance. It would also be useful to check whether a complaint was made to the police or any other relevant organization. The OMP will also have to devise guidelines regarding what information to seek to establish the context in which the person went missing and the weight that should be given to different types of information.
II. Planning the Investigation
Prioritizing cases is an extremely sensitive issue. In Sri Lanka, relatives of missing persons have been longing for years and sometimes decades for information regarding their loved ones. In this context, it may be extremely difficult to accept that their cases are not considered priorities. In addition, the OMP’s decision to prioritize some cases over others may be misinterpreted as a lack of interest. However, as explained above, the prioritization of cases for investigation is unavoidable, at least in the first few years of the OMP’s mandate given the sheer number of reported cases.
In light of these constraints, the decision to prioritize cases must be impartial, transparent and justified. The OMP must also determine how this decision will be taken and whether checks and balances would be required.
1) Criteria for Prioritization
The OMP Act envisages several criteria for prioritizing cases for investigation. Thus, according to the Act, the Office may prioritize incidents of missing persons that have occurred most recently. A number of reasons may justify this approach. First, from a pragmatic standpoint, recent cases are generally easier to investigate because with time, physical evidence degrades and witness recollection of incidents is less precise. Second, humanitarian imperatives may also justify the prioritization of most recent cases given that the chances of a person being found alive statistically decrease with time.204
Third, the Act also envisages that the Office prioritizes cases for which there is already substantial evidence. This approach is essential to guard against the establishment of the Office being used as an excuse to further delay progress on some cases. Several family members have emphasized that sufficient evidence exists for their case to be resolved, provided that there is willingness to do so. These cases must be resolved forthwith. This approach would be essential to build confidence in the Office’s ability to provide much-needed answers to families. Conversely, however, when Magistrate’s Courts’ investigations are underway, some families may prefer that the Office does not deal with their cases. This also ought to be taken into account.
Fourth, the Act specifies that the OMP may prioritize cases of public importance. This last criterion remains relatively vague and leaves room for interpretation. The Office must therefore clarify what type of cases ought to be regarded as “cases of public importance”. These may be high profile cases, which have generated intense scrutiny and discussions. Solving these cases would send a strong signal of political willingness. However, progress on these cases ought not to overshadow unjustified inertia on cases that do not attract similar attention.
Experiences in other countries provide useful guidance regarding the various approaches that the OMP may adopt for the prioritization of cases. Interestingly, the OMP Act only envisages a case-specific prioritization method. At times, however, a systematic approach to the investigation may be more efficient.
For instance, the Argentinian National Commission on the Disappearance of Persons (CONADEP) categorized cases presenting similar patterns into clusters.205 This allowed investigators to proceed in a systematic manner. Similarly, in Sri Lanka, many cases of enforced disappearances present similar patterns and were carried out according to the same modus operandi. Therefore, prioritizing the investigation into clusters of cases could enable the Office to solve or obtain lead on a large number of cases at the same time. Another approach would be to prioritize investigations into known or suspected official and unofficial places of detention. This would similarly enable the Office to make headway on a large number of cases. It would also serve a humanitarian imperative by putting an end to illegal detention. This was the approach also adopted by the CONADEP.206
2) Decision-Making Process
While the Act clearly states that the OMP should decide how to prioritize cases, it does not specify which organ within the OMP should take such a decision and which persons or entities should be consulted in the process. Comparative experiences show that, in most cases, commissioners make the decision regarding which cases to investigate, either collegially207 or individually, on a rotational basis when commissioners represent a party to the conflict.208
This system concentrates power in the hands of commissioners who will be the sole decision makers regarding case prioritization. In addition, commissioners may not have the required knowledge to make strategic decisions for investigations. Under the Model proposed in this Manual, the OMP may receive technical input in this respect from the Forensic Expert Committee and the Investigative Expert Committee (cf Chapter 1: Structure and Staffing).
It is also important to provide a measure of oversight over this decision and ensure that it is based on consultative processes including with families of missing persons. This could be done through consultations (cf Chapter 9: Information to Families and Public Outreach) and by enabling families to exercise some oversight over the decision (cf Chapter 10: Oversight). This inclusive approach is important because a large majority of missing persons is of Tamil origin and because negotiations regarding case prioritization209 may heighten tensions and undermine OMP credibility.

Chapter 5: Receiving and Procuring Information

The OMP Act allows the Office to receive and collate data and evidence on missing persons already collected/in the process of being collected by governmental and non-governmental third parties.210 In addition, the OMP may proactively collect new data and evidence using the full range of powers listed in section 12 of the Act.211 For instance, section 12(c) and section 12(e) empower the OMP to procure documents or statements from people present in Sri Lanka and government authorities.
The first part of this chapter discusses the procedures that ought to be adopted for the reception and collation of data and evidence already obtained by third parties in the context of previous initiatives to search for missing persons. The second and third parts of this chapter discuss the reception or procurement of new data and evidence by the OMP, which is referred to as de novo collection of data. This will require the adoption of stringent procedures by the Office. In particular, the Office must ensure that the data collection process is carried out in a way that would preserve the evidentiary value of all new data obtained. This is of paramount importance because this data may be relevant in the context of a criminal investigation. In fact, according to the Act, when it appears that an offense has been committed, the Office may report it to relevant law enforcement or prosecuting authorities.212 To the extent it is not confidential, information received or procured by the OMP, may be requested by such authorities to assist the criminal investigation or prosecution.
I. Receiving Data Gathered by Third Parties
According to the Act, the OMP’s mandate includes the collation of data obtained by Commissions of Inquiry and Special Presidential Commissions of Inquiry (CoIs) on missing persons.213 These collated data can form the basis of an Office investigation.214 Therefore, the Act tries to create a link between the decades-long investigative efforts on missing persons carried out in Sri Lanka and the work of the present Office. In addition, in terms of section 10(e) of the Act, the OMP’s mandate also extends to the collection of missing persons’ data obtained by other institutions and organisations, such as the ICRC. While the centralization of data on missing persons collected by various institutions including past CoIs and the ICRC is a key component of the OMP’s mandate, it also presents a number of challenges as explained in this section.
1) Data from Past Commissions of Inquiry
Despite the Act’s welcomed provisions that empower the OMP to collate data of past CoIs, this task requires significant preliminary work given that: (1) there were many CoIs, and (2) these commissions did not always operate or report publicly.215 The Sri Lankan experience in relation to commissions appointed to inquire into missing persons spans back to the early 1990s when President Premadasa and President Wijetunge respectively appointed commissions that were both named “Presidential Commission of Inquiry into Involuntary Removals of Persons”.216
Each of these Commissions, starting from the two oldest Commissions mentioned above to the three Zonal Commissions and the All-Island Commission appointed by President Bandaranaike Kumaratunga to the more recent Lessons Learnt and Reconciliation Commission and Paranagama Commission, have amassed vast amounts of data and information in the course of their inquiries.217 Additionally, some of these Commissions, such as the All-Island Commission and the Paranagama Commission, had overlapping time periods within their mandates.218 Thus both the sheer volume of evidence available and the overlap in the commissions’ mandates will necessitate a careful and comparative examination of each Commission’s report and the data gathered by these Commissions, prior to the formal collation of such data. Moreover, the reports of the two oldest commissions were not made public.219 Thus, the first challenge for the Office would be to retrieve and re-examine the reports, data and other material gathered by these CoIs.
Retrieving, re-examining and comparing past Commission reports and data would require the establishment of linkages between the OMP and a number of different institutions and individuals. In terms of institutional linkages, the Office must identify the relevant governmental entities with custody over the CoIs data. This task is vital since many of the past CoIs have amassed large quantities of biographical data on missing persons from their relatives.220 The Paranagama Commission’s First Interim Report also refers to the existence of a database that has the names of all missing persons brought to the attention of the Commission.221 Once the OMP identifies relevant custodial entities, the Office has the option of concluding data transfer agreements with those entities in order to retrieve the CoIs data.222 Comparable institutions dealing with missing persons, such as Bosnia’s Missing Persons Institute (MPI)223 and Kosovo’s Governmental Commission on Missing Persons (GCMP)224 have concluded formal coordination agreements with relevant entities that already have data on missing persons.
Alternatively, the Office could opt to retrieve these data by coordinating with these entities on an ad hoc basis. The OMP Act section 12(e) allows the Office to request assistance from state, governmental, provincial and local authorities or agencies in furtherance of its mandate. The assistance requested could include the production of information or other documents in the possession of such authorities or agencies.225 From the two options mentioned, it would be preferable, in the interest of efficiency, to opt for formalized data transfer agreements. In fact, pursuing coordination with public sector entities on an ad hoc basis is likely to be complex and time consuming.
Next, the Office should re-examine and re-organize the CoIs data gathered over the past 25 years. Such data re-organisation is vital for subsequent data classification and centralization in the Office database. Ideally, the OMP should engage with individuals who were involved in past CoIs. One way of doing this would be for the Office to recruit individuals who were involved in the administrative, data gathering and investigative sections of past CoIs (cf Chapter 1: Structure and Staffing). Alternatively, the Office could opt to conclude co-operation agreements with such individuals.226 Subsequent to such an agreement, the Office could seek the expertise of these individuals when re-examining and re-organising past CoIs data. However, both these strategies are contingent upon these individuals’ willingness to engage with the OMP. In the event former CoIs’ staff is unwilling to cooperate with the OMP, the Act empowers the Office to summon them227 to clarify issues pertaining to CoIs data.
2) ICRC Information
The ICRC constitutes a valuable source of information pertaining to missing persons in Sri Lanka because it has documented close to 16,000 cases of missing persons since 1989.228 Nevertheless, the ICRC only shares its information with governmental entities when they guarantee confidentiality.229 Often, the ICRC will transmit confidential information to governmental authorities only if it has obtained explicit consent to do so from family members. For instance, in the case of Peru, the ICRC first obtained the consent of family members before sharing relevant data on missing persons with the Peruvian Truth and Reconciliation Commission.230 In other instances, the ICRC redacts data before sharing it with national authorities.231
II. Procuring Statements and Documents for Investigations
The search for missing persons requires effective and extensive collection of background information regarding the person who went missing. This includes the individual’s last known location, possible whereabouts, physical and personal traits, and the circumstances of his or her disappearance.232 This information relies on a diversity of sources, such as depositions from eyewitnesses and relatives, government records, and other third party sources such as newspaper articles, publications, or broadcasts. Statements and documents should be obtained in accordance with procedures that ensure an orderly and organized evidence collection.
1) Procuring and Receiving Written and Oral Statements
According to OMP Act section 12 (c), the OMP is empowered “to take all necessary steps to investigate cases of missing persons” such as “to procure and receive statements, written or oral, and to examine persons as witnesses, including through video-conferencing facilities”233 and “to summon any person present or residing in Sri Lanka to be present before the OMP to provide a statement.”234 These subsections give the OMP extensive power to gather any relevant evidence from the relatives of missing persons, witnesses or governmental officials.
a. Receiving or Procuring Statements from Relatives
Transitional justice mechanisms in many countries have procured statements from family members of missing persons through interviews. Since the statements made by family members during interviews can reveal essential information for the investigation and for the identification of human remains (cf Chapter 6: Identifying Human Remains), countries like Armenia, Azerbaijan and Georgia have relied on standardized forms provided by the ICRC235 to record such information.236 Other options for standardized forms are also available. In particular, Interpol freely provides such forms in order to standardize data gathering processes.237 The Office may therefore use these standards forms and, if necessary, adapt them to take into account the specificities of the Sri Lankan context.
Information collected should include basic information, such as: name, age and gender, occupation, physical traits, medical history, the clothes worn at last sighting, the place of last sighting, the reasons why the person is thought to be missing, the circumstances of disappearance, and personal information about family members and the person making the report.238
b. Receiving or Procuring Statements from Other Witnesses
The Office would also need to adopt stringent procedures to govern witness examination, since witness statements often prove fundamental to begin or assist in the investigative process. During the interview of witnesses it is essential to keep in mind that the information recorded and the statement given by witnesses may be useful in a criminal process. In this respect, investigators conducting the interviews and recording the statements must be specifically trained in investigative best practices (cf Chapter 1: Staffing and Training). In particular, investigators must refrain from asking leading questions.239 Interviews technics to ascertain the veracity of witness statements are also essential to vet testimonies and ensure that the Office does not give undue weight to false evidence while deciding on follow-up investigations. In this respect, a good practice would be to systematically rate the credibility of the evidence while saving it in a central database.240 To the extent possible, the statements must be accompanied by investigators’ notes, recording their impressions about the interview.241 In this respect, it is important to highlight that both OMP investigators and the witnesses they interview may subsequently become witnesses in criminal proceedings. In addition, investigators must also ensure that they do not disclose information regarding the progress of the investigation or the OMP’s findings to witnesses, other than information already publicly accessible. In addition, the interviewers must conduct interviews in manners, locations and times that maximize privacy and comfort for witnesses.242 Finally, it is good practice to record the contact details of two persons known to the witness who may be able to locate him/her if difficulties arise in this respect at a later stage.243
While it is infinitely preferable that interviews are conducted in one language, should the investigator not speak the interviewee’s language fluently, interpreters must be available to assist the interview process. The U.S. State Department has created useful guidelines for selecting interpreters that possess the appropriate qualifications and competencies for interviewing trauma victims, which may be instructive here.244 In addition, interpreters must be properly trained to ensure that they are following rules for professional conduct. This includes remaining unobtrusive, refraining from asking one’s own questions or altering an interviewee’s answers, keeping information confidential, and disclosing any conflicts of interest. Several guidelines on interpreting best practices are public available245 and should be adapted for the Sri Lankan OMP context.
The Office can use the Act’s power of summons to obtain oral statements from government officials who may have information about the location of detained missing persons or mass graves. However, it may be preferable to explore avenues for collaboration prior to issuing summons. In South Africa, for example, the Missing Persons Task Team’s collaboration with apartheid era perpetrators was vital to obtain information on the whereabouts of many mass graves.246 Prior to the issuing of such summons, the Office could also emulate the approach taken by Argentina’s CONADEP and send questionnaires to former governmental and military officials.247 The Office could initially rely on the written statements sent in response to the questionnaires, and thereafter utilize its power of summons to seek further clarification from state officials.
2) Procuring Documents
The OMP has the power to summon any person present or residing in Sri Lanka to be present before the OMP to produce any document or other thing in his or her possession.248 Furthermore by way of OMP Act subsection 12 (e), the Office is empowered “to request assistance [...] from any State [...] authority [...], and [...] any authority, agency or officer to which a request for assistance is made by the OMP shall forthwith render such assistance.” This “assistance shall include [...] providing information and producing documents in the possession of such authority, agency or officer.” These two sections enable the OMP to obtain documents from private and state level entities for its investigative purposes.
The Office can also use this power to obtain relevant reports, records, publications or letters from third parties. It will be paramount for the Office to organize carefully the obtained documents and link them in the database to the case or cases to which they relate. For instance, Argentina’s CONADEP had a unique number for each missing persons’ file before the Commission, and linked the documents it obtained from different sources to the relevant files before the Commission.
The Office can also utilize its broad powers under the OMP Act section 12 to obtain documents in government or military custody. These documents could include police documents, mortuary books, hospital records, prison registers and military reports. However, obtaining such documents from authorities will present challenges. Often, perpetrators of atrocity crimes who remain in power destroy documents implicating them in crimes to obstruct potential future criminal prosecutions.
In Argentina, for example, the military destroyed documentary evidence of command responsibility and chain of command liability.249 In addition, many government authorities in post-war states do not have the means or the will to facilitate document preservation. The Iraqi government, for example stored documents that could potentially aid the identification of countless mass graves in a manner that led to their eventual decay.250
To avoid—to the extent possible—poor documentation practices or sabotage of such records, the OMP should work directly with the authorities that are in charge of these documents. For instance, the Cyprus Commission on Missing Persons (CMP) engaged constantly with the Cyprus United Nations Peace Keeping Forces (UNPKF), and this engagement finally led to access to UNPKF archives for the Commission’s investigations. If this approach does not yield any result, the OMP may also resort to its power to summon any person residing in Sri Lanka for the production of any document or other evidence.251 The Act specifies that the refusal or failure without cause to produce a document summoned by the Office constitutes contempt against the authority of the Office.252
When handling received or procured documents, the OMP also must comply with investigative best practices to ensure that the handling of documents, audio, or video recordings by the OMP does not diminish their probative value. Documents, audio or video recordings are physical evidence. As such, their probative value depends on proof that no one likely forged or tampered with them. Therefore, documenting chain of custody is best practice to assist criminal courts in assessing the probative value of physical evidence.
Chain of custody documentation is a record of the collection and handling of a piece of physical evidence from its creation (in the case of documents and recordings) until the moment it was transferred to the relevant criminal court. The OMP should systematically document in writing the chain of custody of physical evidence. To this end, the OMP should establish procedures for chain of custody documentation of any item of physical evidence the Office receives.253 These procedures require recording the identity of the person who received the evidence and of any person within the Office who had access to the evidence from the time the Office received it. Moreover, access to physical evidence by OMP staff must be restricted and duly monitored (cf Chapter 8: Data Storage).254

Chapter 6: On-Site Investigations

The OMP Act empowers the Office to apply for, carry out, or monitor on-site investigations. Locations include: actual or suspected detention sites,255 premises suspected to contain evidence relevant to an investigation,256 and gravesites.257 The OMP’s expected role with respect to on-site investigations and the extent of its powers depends upon the site concerned. Whether the OMP is empowered directly to carry out an investigation or to observe an investigation, the Office must follow best practices in criminal and tracing investigations. This chapter examines best practices for the searches of premises and for the excavation and exhumation of mass graves.
I. Searches of Premises
The OMP Act empowers the Office to authorize its officers to enter a “place in which any person is suspected to be detained, or is suspected to have previously been detained in, and make necessary examinations therein or inquiries from any person found therein.”258 The officers who enter such a place can also retain documents or objects that they deem necessary. The OMP does not have to apply to the Magistrate’s Court for a warrant to carry out such a search. However, if such a search is carried out, the OMP will have to report to the Inspector General of Police within twenty-four hours of conducting the search.259 Additionally, the Act regulates this warrantless search power by enabling the Minister of Justice to formulate guidelines for the conduct of the search, which the Minister must place before the Parliament for acceptance.260
The OMP Act strengthens the Office’s search powers by empowering it to search any other premises for its investigative purposes. According to the Act, the OMP can:
Make an application to the Magistrate having territorial jurisdiction, for the issuance of a search warrant, to enable Police or specified officers of the OMP, to search any premises suspected to contain evidence relevant to an investigation being conducted by the OMP, and to examine, make copies of, extract from, seize and retain, any object that is deemed necessary for the purposes of any investigation being conducted by the OMP.261
While the Justice Ministry’s issued guidelines will provide the framework within which the OMP investigators must carry out searches, the Office also must devise rules and protocols aimed at operationalizing these guidelines in order to avoid the loss or deterioration of evidence that would be valuable in a criminal process.
1) Securing and Documenting Search Sites
First, when conducting a search, the OMP investigators must secure the premises to protect evidence.262 Second, investigators should note the particulars of the place that is to be searched prior to commencing the search by, inter alia, photographing and videotaping the site and recording observations.263 Investigators should also prepare a detailed sketch of the premises that they will search. The sketch must indicate the cardinal directions and locate any evidence that could be relevant in a criminal process, as well as the place and position of the items that the investigators seize. The investigator who prepares the sketches must date and sign them. The detailed site description aims at assisting future criminal processes for which the location of items or the existence of other evidence may be relevant.264
Third, standard investigative practices for the lead investigator include noting the exact time at which the team arrived at the place of search.265 Additionally, to enhance transparency the Office should specify the officers’ names who are involved in each search. For instance, the Nepal CIEDP’s deed of entrance contains the names of each investigative officer involved in a given search process.266 Investigators may be called to testify in a subsequent criminal process about the evidence that was found during a search.
2) Carrying out Searches
The OMP must carry out searches in an organized and systematized manner. Thus, the Office must prepare and strictly adhere to protocols. Police practices may inform such protocols. In addition, the OMP may seek the expertise of specialized institutions such as the Institute for International Criminal Investigations based in The Hague because instituting procedures for collecting and handling evidence may vary based on the type of evidence. Each item collected must be precisely and systematically labelled. Furthermore, in order to facilitate the strict application of investigative protocols, one investigator (generally referred to as the lead investigator) must be responsible for the search and collection process.
3) Documenting Searches
The Office must also meticulously document the search through taking detailed notes and record keeping of the chain of custody. In addition, best practices command that the search be also documented through video recording and photography in order to preserve evidence for a potential court process. The Office must also record chain of custody of photographs, recordings, or notes documenting the search.
II. Mass Grave Investigations
The OMP Act section 12(d) empowers the Office to apply to the Magistrate’s Court with territorial jurisdiction for an order to carry out excavations and/or exhumations. Section 12(d) also specifies that the OMP can apply to the Magistrate’s Court to act as an observer to such excavation and exhumation and to “other proceedings pursuant to the same”. Accordingly, the OMP’s role in mass grave investigations is limited. In particular, the OMP is not empowered by the Act to carry out excavations or exhumations. However, a Magistrate’s Court’s order may direct the OMP to play a role in mass grave excavations and exhumations beyond mere observation.
The OMP should play a central role in locating mass graves. In addition, as an observer, the OMP must ensure that all entities involved in mass grave investigations respect relevant standards and best practices. Under section 12(d), excavations and exhumations must be carried out under the purview of a Magistrate’s Court to ensure that these are carried out in accordance with standards normally followed in criminal investigations. The OMP’s observer role will be to ensure that the excavation, exhumation and “other proceedings pursuant to the same”267 are done in a manner that will not compromise the identification of remains and subsequent OMP’s investigations into the fate and whereabouts of missing persons.
This section examines best practices in mass grave investigations. In its observer role, the OMP ought to monitor the respect of these best practices. If the OMP is called on to play a more active role, OMP personnel must directly follow best practices identified in this section.
1) OMP’s Direct Role
Although the OMP may not be directly involved in the excavation and exhumation of mass graves, the Office would play a central role in locating mass graves and creating favourable conditions for excavations and exhumations to take place. In addition, the Office will be central to ensure that potential relatives and the local population are consulted and provided with relevant information, both prior to the excavation and exhumation taking place and throughout the process.
a. Locating Mass Graves
The OMP is likely to play a key role in locating mass graves. The Office must carry out searches for mass graves systematically and methodically and therefore seek relevant expertise.
Testimonies and information that families, the local population, or local authorities provide may be crucial in identifying mass graves. Whenever available, the Office may also use satellite imagery to enable the search of wider areas for signs of mass graves.268 If the Office can narrow down the location to a specific area, ground penetrating radar, magnetometers, and/or forensic archaeology would be particularly useful to locate gravesites.269
b. Securing and Documenting the Site
Once the OMP identifies a potential gravesite, the Office must document its existence and characteristics prior to excavation. For example, the Iraqi Law on Protecting Mass Graves recommends that the team investigating the location of mass graves prepares a detailed report that includes documents, photographs, maps and drawings of the location of suspected mass graves.270
Once the location and characteristics of mass graves have been duly documented, the OMP must seek the assistance of relevant authorities to ensure that the sites are secured and protected from any interference.271 The Iraqi Law on Protection of Mass Graves identifies three steps that need to be taken in this respect: first, declaring the site as a mass grave; second, notifying all relevant parties including family, authorities and the community; and third, undertaking practical protection and security measures.272
The early location of mass graves is essential to ensure their preservation. Depending on the circumstances, the mass grave preservation may involve simple measures, such as cordoning and fencing to prevent interference with the gravesites. Preservation can also involve outreach programs to sensitize relatives and the local population on the steps that ought to be taken if a mass grave is found. Absent any information, potential relatives or the local population may disrupt the mass grave and unwittingly destroy or contaminate evidence. For instance, in Iraq, relatives began digging up graves on their own.273 Such situations may be prevented by an early identification, marking and securing of mass graves coupled with targeted outreach programs. In some cases, further intervention that requires the assistance of various parties and authorities would be needed to ensure the preservation of mass graves from outside interference.274 This assistance would typically be necessary when seeking to prevent construction on or near a gravesite. For instance, in Chechnya, mass graves were found in construction sites and workers proceeded to relocate the remains, leading to further destruction of evidence.275
c. Ensuring Families’ Participation
Mass graves excavations and exhumations are of a very sensitive nature both for the population living in close proximity to suspected gravesites and for potential relatives. In particular, the ICRC’s survey on the needs of the relatives of missing persons in Sri Lanka reveals that some relatives do not wish to “disturb the dead”.276 In light of these concerns, the Argentine Forensic Anthropology Team recommends seeking approval from relatives as well as the nearby community prior to any excavation.277 The OMP may play a proactive role in ensuring that concerned parties have been duly informed of an excavation and exhumation request, and that their concerns have been heard and taken into account to the extent possible. The OMP may also play a crucial role in facilitating information sharing regarding the process with relatives and concerned parties.
2) OMP’s Observer Role
As an observer, the OMP may recommend the adoption of best practices and protocols for police officers and other personnel involved in the excavation and exhumation to follow. These protocols would ensure enhanced collaboration between the various entities and agencies playing a role in mass graves investigations. In addition, the OMP may also recommend the provision of specific expertise whenever required. In fact, according to section 10(b) of the Act, part of the Office’s mandate is precisely to make recommendations to the relevant authorities towards addressing the incidence of missing persons. In addition, the OMP should also thoroughly and systematically document excavations and exhumations.
a. Making Recommendations for Procedures
In its observer role, the OMP can develop protocols and standards relating to the excavation and exhumation of mass graves. These protocols should follow best practices and standards in the field and should reflect the advice and assistance from relevant experts. In order to ensure the respect of these standards and best practices, the OMP may enter into agreements with the various entities and agencies involved in mass graves investigations.278
Finally, the Office, as an observer, may also make recommendations regarding the handling and reburying of human remains in a way that preserves the dignity of the remains, which may require the adoption of guidelines in consultation with affected persons from various ethnic and religious backgrounds.279
b. Making Recommendations for Relevant Expertise
The excavation and exhumation of mass graves requires a variety of resources and expertise, including technical capabilities and general facilities standards. The ICRC survey on the needs of missing persons’ relatives points out that the Sri Lankan forensic experts regularly carry out medical investigations during judicial investigations. However, they are not all fully proficient in the specific skills required to recover and analyse bones from mass graves.280 In light of this, the OMP may make recommendations for specific forensic experts with the required knowledge and expertise to oversee the exhumation process.
c. Documenting the Excavation and Exhumation Process
The main task of the OMP acting in its advisory capacity will be to document the excavation and exhumation process. The OMP must monitor the excavation process to ensure that it is carried out in accordance with scientific and criminal procedure standards. The process of documentation is very similar to the one that ought to be followed for the documentation of other on-site investigations. It is important to use a variety of means to record and document evidence (sketches, written notes, photography and videos).281

Chapter 7: Identifying Human Remains

The present chapter explains the analytical and scientific methods that may be used by the Office to ascertain the fate and whereabouts of missing persons using the evidence received and procured as described in chapters 5 and 6.
In most post-conflict areas, where many unidentified mass graves exist, ascertaining the fate of missing persons requires the identification of human remains. This may be done by matching information (biological, medical and genetic) regarding missing persons (ante mortem data) with information about human remains (post mortem data). In order to match ante mortem and post mortem data, the OMP may use traditional identification methods. These methods rely on information about missing persons other than genetic information (biographical and medical information about missing persons, finger prints and dental prints). The OMP may also resort to DNA identification methods. In any event, matching ante mortem and post mortem data necessitates the OMP to centralize all information that it receives and procures.
The Office may also use alternative or complementary methods to identify human remains. These methods include a relative’s visual identification of remains, or associated evidence, such as personal documents, belongings, or identification discs.282 However, the accuracy of this method is significantly lower than other methods and, depending on the circumstances, may be traumatic for relatives. After explaining the process of matching ante mortem and post mortem data through traditional or DNA identification methods, this chapter discusses the respective merits of the various identification methods that may be used by the OMP (visual identification, traditional identification, DNA identification). This chapter also details the requirements for setting up and managing a central database that will facilitate the management of information and the identification process.
I. Visual Identification Method
The visual identification method relies on relatives’ visual identification of human remains, clothes, or belongings found in mass graves or on the remains. However, the ICRC only recommends this method in cases where bodies are neither mutilated nor decomposed to avoid re-traumatizing family members.283 In BiH, prior to the initiation of DNA led investigations, remains were returned to family members based on visual recognition of personal effects (such as identification cards or clothing) or the bodies themselves.284 However, research subsequently conducted by the International Commission on Missing Persons (ICMP) showed that there was a high number of misidentification due to overreliance on this identification method.285
II. Traditional Matching Method
The second method to identify human remains is matching ante mortem and post mortem data using all available means other than DNA testing. DNA testing requires specific expertise and equipment. It also poses specific ethical issues and for this reason will be dealt with in the next subsection.
Matching ante mortem and post mortem data requires: the systematic collection of such data and the centralization and processing of information using an appropriate database. This subsection deals specifically with the collection of traditional ante mortem and post mortem data.
Ante mortem data literally means data on people “preceding their death.” In the context of an investigation into missing persons, ante mortem data refers to the data on the person before he or she went missing. The Office may obtain this data from a variety of sources. In contrast, post mortem data refer to data relating to a person after his or her death. Post mortem data are generally obtained after the discovery of human remains and during post mortem examinations. It includes detailed pathology, anthropology and odontology data, and information related to the cause of death.
1) Traditional Ante Mortem Data
Relevant ante mortem data refers to two categories of information. First, ante mortem data are information clarifying the circumstances in which the person went missing. This information would be particularly useful to assist the search by narrowing down the hypotheses regarding the fate and whereabouts of the missing person. Secondly, it also refers to information that could assist the identification of human remains through matching ante mortem and post mortem data.
Ante mortem data therefore includes information on the circumstances in which the person went missing (including date of disappearance; last known location; any clothes and jewellery worn by the missing person, as well as objects in his or her possession such as personal belongings, personal documents or identification discs in the case of military personnel).286 It also includes general information about the missing person such as height, gender or age; as well as more specific information regarding the person, such as implants, scars, tattoos, skeletal radiographs, dental records, fingerprints or other medical and physical traits.287 Whenever available, dental records and fingerprints are regarded amongst the most reliable methods of identification.288 The Office should use standardized forms to record traditional ante mortem data (cf Chapter 4: Receiving and Procuring Information). Given the array of information that may be relevant to traditional identification methods, traditional ante mortem data may be obtained from missing persons’ relatives, as well as from third parties, such as hospitals or governmental authorities.
2) Traditional Post Mortem Data
Traditional post mortem data can take the form of biological reference data derived from human remains such as age, gender, height and unique physical identifiers. It can also be artefacts retrieved from the grave, such as clothing, documents and other belongings.289
While traditional post mortem data may play a central role in the identification process, in practice, it may be challenging to retrieve this data. Depending on the age of the mass grave, climate and soil conditions, useful post mortem data may not be available. International Criminal Tribunal for the Former Yugoslavia (ICTY) investigators faced this challenge. Despite every effort to preserve physical evidence retrieved from mass graves, post mortem data obtained often could not be compared with ante mortem data for identification purposes.290 The ICMP identified similar challenges in Kosovo.291
As explained in chapter 6 relating to On-Site Investigations, the Act does not empower the OMP to play a direct role in excavations and exhumations and “other proceedings, pursuant to the same.”292 The OMP will therefore have to rely on the exercise of discretion by a Magistrate’s Court to gain access to relevant post mortem data. Section 12(e) of the Act specifies that any authority, agency or officer to whom the request is made “shall forthwith render such assistance,” “notwithstanding anything to the contrary in any other written law of regulation.”293 This power is essential to enable the OMP to access relevant post mortem data.
III. DNA Identification
Another method of matching ante mortem and post mortem data consists of using DNA identification methods. DNA is a very effective identifier.294 This is because DNA is unique to an individual and, therefore, can be analysed to produce a profile that can be reliably compared with other profiles. In addition, DNA degrades very slowly in hard tissue, and can be recovered from minute biological samples, such as bloodstains or even a single hair.295
Collecting DNA ante mortem and post mortem data and its analysis is a complex process that requires the assistance of geneticists who will be able to select which DNA samples to analyse.296 In addition, DNA data require access to medical and technical facilities and to extensive resources. In light of this, it may be preferable for the OMP to outsource the analysis of samples to other entities including medical faculties or laboratories. This may be done through the conclusion of agreements as provided under section 11(a) of the Act. This was done in other countries. For instance, in Kosovo, the ICMP offered to test DNA samples retrieved by the Kosovo office.297 Similarly, the Argentine Forensic Anthropology Team cooperates with laboratories in Canada, the U.S., the UK, Germany, and Argentina.298 Even though the OMP may be able to outsource the analysis of samples, it should nonetheless establish uniform procedures to ensure that the handling of the genetic material meets forensic and scientific requirements.
While the OMP may play a central role in the collection and analysis of DNA ante mortem data, its role as far as DNA post mortem data is concerned is unclear. This is because the Act only envisages an observatory role for the OMP for excavations and exhumations and proceedings taking place pursuant to the same.299 This may include DNA collection and testing. It is therefore essential that the OMP resolves this issue in advance with the judiciary, or seeks an amendment to the provisions of the Act.
1) DNA Ante Mortem Data
If the OMP opts for a DNA matching approach, the Office must collect biological reference samples to obtain the DNA of the missing person or genetic samples from biological relatives. Ante mortem DNA data from missing persons may be retrieved from samples left by missing persons, such as samples in hairbrushes, toothbrushes, or previous blood samples. In situations where many people went missing, or where there may be mass graves, it is recommended to collect biological reference points, or DNA, from at least three family members to increase the degree of certainty when matching relatives’ DNA with that of human remains.300 Biological reference points include blood or saliva samples from biological relatives of missing persons.301
Broad investigative powers under the OMP Act section 12(c) permit the Office to collect biological reference samples from missing persons’ relatives. Non-specialists can collect blood or saliva samples.302 However, the comprehensive ICRC Guidelines on DNA analysis provide important considerations.303 For example, the OMP must prepare protocols that should be followed when collecting DNA reference samples from relatives to ensure that the process respects bodily integrity and requires informed, written consent. To this end, all relatives should be provided with simple consent forms that clearly explain the intended use of the samples and the associated risks.304 It is also important, to the extent feasible, to collect DNA samples from relatives at the same time as other ante mortem data to avoid multiple and uncoordinated requests for information.305 Collecting ante mortem data from relatives also requires specific training (cf Chapter 2: Trainings) to ensure that the Office staff collects data in a respectful and sensitive manner, handles biological data in a way that prevents their contamination and ensures an unbroken chain of custody, has knowledge of health and safety issues, and understands and records properly the nature of biological relationships. In this respect, a highly specialized sub-unit may be created within the tracing unit (cf Chapter 1: Structure and Staffing).
2) DNA Post Mortem Data
Forensic experts or technicians should collect DNA data from human remains from soft tissues, such as muscle or skin, or hard tissues, such as bones and teeth. The sample collection must follow rigorous protocols to avoid deterioration of DNA and other evidence. The ICMP Standard Operation Procedure guidelines provides guidance on the procedure for sampling skeletal human remains, including determining which tissues to sample as well as procedures to document the chain of custody.306
In order to fulfil its observer role and to monitor and document post mortem DNA analysis, the OMP may seek the advice of domestic and foreign experts who may serve in its Forensic Expert Committee (cf Chapter 1: Structure and Staffing). In addition, the OMP may offer to the relevant Magistrate’s Court to conduct post mortem DNA analysis.
IV. Comparing Identification Methods
This section examines the merits of each identification method given the context and various constraints that an institution such as the OMP may face. The various methods described in this chapter do not have the same degree of accuracy. In fact, visual identification is considered the least reliable, while DNA identification is regarded as the most reliable identification method. Misidentification can have disastrous consequences for families, leading to the return of human remains to unrelated individuals and/or disrupting the overall investigation by rendering the correct identification of other human remains impossible.307
When assessing the accuracy of a method, it is useful to distinguish between presumptive methods of identification and methods that rely on primary identifiers. Presumptive methods, as the term indicates, do not lead to conclusive findings regarding the identification of human remains. In this respect, both visual and traditional identification methods are presumptive. This is opposed to methods relying on primary identifiers, such as dental records, fingerprints and DNA that are considered sufficiently reliable to lead to conclusive identification.308
While DNA testing is very accurate, it is costly. In BiH, the ICMP reported that a single identification with DNA amounted to several hundred euros.309 In Sri Lanka, where over 16,000 people have been reported missing, the cost of DNA identification will be an important factor when deciding on identification methods.310 Additionally, given the large caseload, the number of medical, technological and other expert staff available may not be sufficient to keep pace with the number of cases. Finally, DNA identification is only possible if relatives agree to provide biological samples.311 These various constraints should weigh in the decision to adopt this method of identification.
Generally, the various identification methods discussed (visual identification, traditional matching and DNA matching) are used cumulatively. This cumulative approach is essential to meet accuracy requirements while addressing some of the challenges posed by the use of DNA as a principal method of identification.
The ICRC recommends that an investigation rely on eyewitness reports, associated evidence, and visual recognition as an initial lead, while DNA data confirm the identification.312 Argentina, among other countries, adopted this approach in which investigators first used traditional means of identification to narrow down matching hypotheses and then used DNA evidence to confirm or inform these hypotheses.313 However, depending on the cases, a reverse approach—adopted by the ICMP, which starts from DNA identification and resorts to traditional data to corroborate the findings—may be more appropriate.314
The Forensic Anthropologic Foundation of Guatemala (FAFG) recommends an accumulative forensic approach for suspected cases of enforced disappearances. The FAFG emphasizes that, depending on the cases and the information available, the investigation may either start with DNA identification or through the collection of other information providing useful investigative leads. Thus, the OMP ought to consult forensic experts from these various organizations before deciding on the approach it would adopt for its investigation. This is especially important because the database choice will also determine to a large extent the identification methods that the OMP will be able to use.
V. Information Processing
Processing such large amounts of information will require setting up a database. As the long title to the OMP Act indicates, setting up a database on missing persons is one of the principal goals in the OMP Act.315 In fact, the OMP must centralize and collate all data received in a database.316 The purpose of the database is twofold: first, to enable centralization of all relevant data relating to missing persons, and, second, to assist data analysis and facilitate carrying out an investigation. In particular, the database should facilitate the process of matching ante mortem data with post mortem data.
Experiences in other countries indicate that domestic bodies dealing with missing persons often approach organizations with specialized knowledge on ante mortem data and post mortem classification for technical assistance. For example, the CIEDP of Nepal worked with the ICTJ and the Peruvian Team of Forensic Anthropology (EPAF) to classify and store systematically its available ante mortem data. Similarly, the Azerbaijan State Commission on Prisoners of War, Hostages and Missing Persons has sought the ICRC’s institutional guidance in order to compile and classify systematically its own ante mortem data.317 The OMP may also consider approaching the ICMP for assistance. In particular, the ICMP has longstanding experience in the classification and analysis of post mortem data. It has classified and analysed post mortem data samples from governmental entities and other forensic institutions. Notably, the organization has created a ‘Post-mortem Sample Inquiry’ search tool for governmental authorities and forensic institutions to track their cases.318
The OMP also may seek expertise to create a missing persons’ database from various sources. The first option for the OMP would be to collaborate with the ICRC, and obtain the ICRC’s AM-PM database.319 This database, made freely available by the ICRC, compiles, manages, centralizes and processes files on missing persons (ante mortem data) and unidentified remains (post mortem data).320 Additionally, the database facilitates attempts to match ante mortem with post mortem data. Alternatively the OMP could opt to collaborate with the ICMP and obtain their Identification Database Management System (IDMS). The ICMP has made the database available to governmental agencies carrying out tracing investigations. In each case, the ICMP customized the database to suit the specific needs of the requesting country.321
Partner organization and database choices determine the type of investigation and methods that the OMP will adopt. The ICMP follows the Interpol victim identification protocols and guidelines, prioritizing the use of primary identifiers such as dental prints, fingerprint and DNA.322 In practice, because fingerprints and dental prints are rarely available, the ICMP resorts mainly to DNA analysis to solve missing persons’ cases.
Other databases are also available to specifically assist DNA identification. For instance, FAFG uses M-FISys, which enables the comparison of genetic information for large number of cases. This database combines partial DNA profiles when several partial profiles are obtained from the same body and uses them for the comparison with family reference profiles entered in the Genetic database. FAFG also uses DNAview, which complements the M-FISys with other features that enables the direct comparison of more complicated cases.323 On the other hand, the ICRC AM-PM database did not have a DNA matching tool until recently.324 Therefore, the database focused on other information—witness testimonies, media articles, and a wider array of ante mortem and post mortem information, including clothing and personal effects—in order to build and test matching hypotheses. 
Regardless of the database choice, the Office should call on local expertise in relation to database design. The pre-2005 Human Rights Commission of Sri Lanka (HRCSL) assisted in the establishment and management of a Disappearance Database.325 Although the attempt was ultimately unsuccessful due to change in HRCSL membership in 2005, the individuals involved in this process could assist the OMP in establishing its database. Tapping into both international and domestic expertise will help tailor the OMP’s database to the specific needs of Sri Lanka while ensuring adherence to international best practice.

Chapter 8: Data Storage

The OMP Act contains several provisions regarding secure data and evidence storage.326 However, the Act does not contain any provision regarding the methods to adopt for the preservation of physical evidence including biological evidence. The OMP must develop specific guidelines and procedures to store data and evidence. Data, especially confidential and sensitive data, such as biological and DNA data, must be secured to prevent unauthorized access and to ensure its preservation. Fist, this chapter discusses security measures essential to the protection of data, including digital data, biological and genetic data, as well as other physical evidence. Next, this chapter examines best practices for the preservation of biological materials as well as other physical evidence.
I. Security
The OMP adopts rules and procedures to protect the security of confidential information. Procedures must be adopted to secure the database where all information is centralized. In addition, the OMP must also design procedures to prevent the misuse of biological and DNA data obtained from relatives of missing persons.
1) Database
The Act empowers the Office to secure and safeguard the confidentiality of any data that would come into its possession. For instance, section 15(3) authorizes the OMP to take all necessary steps to ensure the security of any data or database that would be under its control.327 Furthermore, section 12(c)(v) permits the OMP to devise any procedure that it deems fit to ensure information confidentiality.328 Further strengthening the legal regime of confidentiality, section 15(1) imposes a duty on every member, officer, servant and consultant of the OMP to preserve and aid in preserving the confidentiality of matters shared with the OMP in confidence.329
In order to give effect to these provisions, the OMP should prepare guidelines and protocols to govern database maintenance and security. For instance, the Bosnian Law on Missing Persons provides that handling confidential data should be regulated in detail in the CEN BiH Book of Regulations.330 The law also vests responsibility for database maintenance and security on a competent expert authority within its Missing Persons Institute.331
The UN Secretary General’s Bulletin, Information sensitivity, classification and handling, may also guide the Office in adopting measures to preserve data confidentiality.332 With the assistance of information technology experts, the OMP must adopt procedures to prevent unauthorized access to “automated information systems, including networks and telecommunications systems, that collect, create, communicate, compute, disseminate, process or store confidential information.”333 In addition, protocols should cover the handling and transportation of confidential data and evidence. For instance, the UN Secretary General Bulletin recommends transporting confidential information in clearly marked, sealed envelopes or containers.334 The Bulletin also recommends that all outgoing and incoming confidential information be recorded in a special registry that lists the staff members who are authorized to handle such information.335 The Bulletin further recommends the adoption of an authorization process for the duplication of confidential material, and the recording of copies in a special registry.336 Finally, confidential information must be stored under lock and key and accessible only to authorized staff members.337
2) Biological and Genetic Data
Special consideration should also be given to the security of biological/genetic data that is likely to be collated within the OMP’s missing persons’ database. The ante mortem, post mortem and biological reference sample data collection processes are likely to vest the Office with a vast reservoir of sensitive biological and genetic data. Since information about a person’s DNA is highly personal, international standards which govern the handling and security of genetic data should be taken account of by the Office.338 These include the Universal Declaration on Bioethics and Human Rights,339 the International Declaration on Human Genetic Data,340 and the Universal Declaration on the Human Genome and Human Rights.341 The International Declaration on Human Genetic Data broadly states that genetic and personal data of individuals ought to be afforded sufficient confidentiality in order to safeguard the privacy of the individuals concerned.342 According to the ICRC, this obligation in practice would require countries to firstly adopt necessary security safeguards to protect sensitive biological and genetic data.343 Thereafter countries will need to ensure that such personal data is only used, transferred or disclosed for the purposes for which they were collected, unless the individual explicitly consents to the use of such data for additional purposes. Finally, personal data ought to be deleted as soon as the purpose of their collection is fulfilled or where such data is no longer necessary.344 Based on these standards, the OMP ought to formulate binding rules345 for its staff regarding access to and use of the biological and DNA evidence.
In addition, it is important to ensure that genetic data cannot be accessed and misused by third parties or entities. Other than confidential information, information received or procured by the Office may be requested by courts or other entities vested with a power to summon.346 The ICRC guidelines dealing with DNA Analysis and Identification of Human Remains stipulate that the transfer of genetic or personal data to a third party may only take place if that party can be brought within the ambit of a State’s data protection law.347 In BiH, for example, the Law on Missing Persons states that confidential data submitted to the MPI will be subject to the Bosnian Law on the Protection of Personal Data.348 Sri Lanka does not have Personal Data Protection Laws. In light of this, it will be necessary to grant confidentiality to all biological and DNA evidence received from family members. This ought to be specified in the OMP rules.
3) Other Physical Evidence
The OMP should also adopt strict protocols to secure the biological material and physical evidence that it recovers during its investigations. These protocols should aim to prevent evidence tampering or sabotage. The Office should designate secure storage areas for such evidence and only permit access to authorized OMP officers. It will be important for the Office to keep an accurate log of each individual that accesses the storage rooms. The Office should establish protocols to record the removal or addition of any evidence from such storage facilities.349 Staff compliance with these protocols will be essential to prove an unbroken chain of custody.
II. Preservation
The Office must ensure evidence preservation. Physical evidence must be stored in specific conditions (which includes appropriate humidity level, temperature, and type of packaging) to ensure preservation and avoid contamination. In addition, every item should be sealed and packaged separately to prevent cross-contamination (the contamination of one item by another). The packages must be labelled rigorously to facilitate their classification and prevent the loss of biological samples and other physical evidence.
1) Biological Materials
The storage of biological material is highly technical, complex and costly. Due to these challenges, the ICRC recommends that countries enter into logistical agreements with relevant entities in order to seek expertise and assistance on the preservation of biological material.350 The Office could enter into a co-operation agreement with the ICMP in this regard. The ICMP developed and enhanced Libya’s capacity of storing biological reference sample data, when it assisted Libya in setting up the Libyan Identification Centre.351 Alternatively the Office can elect to enter into agreements with medical universities and laboratories domestically in order to preserve any biological material obtained by it. It is essential the Office select storage options before the beginning of investigations or proceeding with excavations.352
Biological materials could refer to:
• Samples obtained from the human remains of missing persons (bone, teeth, hair or muscle tissues);353
• Samples obtained from the relatives of missing persons (blood samples, buccal swabs, saliva samples);354 or
• Biological samples left by missing persons (samples in hairbrushes, toothbrushes or previous blood samples).355
Biological material collection is necessary for human identification processes relying on DNA analysis. Different procedures apply to the storage of different types of biological material. The storage of human remains should be done with the prime objective of preventing further degradation. For instance, extracted muscle tissues or bone samples should ideally be stored at 20°C.356 Cryogenic preservation (freezing) is often pursued due to its ability to preserve muscle tissues and other human remains over a longer period of time.357 A less costly alternative for preserving muscle tissues is to store it within 95% ethanol utilizing commercial storage buffers.358 Nevertheless, this non-cryogenic preservation technique generally results in higher DNA degradation compared to cryogenic preservation.359 Therefore, the DNA yields that could be recovered from muscle tissue are often lower than yields recoverable from muscle tissues stored under cryogenic techniques.
Different storage procedures apply to biological sample data obtained from relatives. For instance blood samples and buccal swabs should be immediately air dried and preserved in sealed plastic or foiled packets subsequent to collection.360 Similarly, biological samples left by missing persons, such as material found in hairbrushes or toothbrushes, should ideally be stored in dry and low temperature conditions for long term preservation.
2) Other Physical Evidence
The OMP should draft strict protocols to ensure that every item of evidence is packaged, labelled and stored in optimal conditions. The OMP may seek relevant expertise locally and advice from specialized institutions such as the ICMP or the Institute for International Criminal Investigations.361
The OMP may receive, collect, or seize physical evidence other than biological samples, including documents, audio recordings, clothing, bullets or other artefacts, recovered in the course of an investigation. If not stored properly, these items too may deteriorate or be contaminated. For instance, tapes must be stored in a dry environment to avoid the acceleration of the deterioration process due to humidity.362 In addition, tapes should not be exposed to dust, moisture, heat or sunlight.363 Clothing must be stored with care,364 including by letting clothing dry before packaging and separating a person’s articles of clothing using paper sheets. It is also important to avoid folding clothing in areas that are either damaged or stained and may have important evidentiary value. Finally, bullets must be stored separately, in soft, cushioned material, and placed in a protective container to prevent damage, in a dry environment and away from moisture or chemicals that could cause corrosion.365

Chapter 9: Information to Families and Public Outreach

The OMP Act contains several sections on information that should be provided to families of missing persons and public outreach activities. In particular, OMP Act section 13 requires the OMP to keep families of missing persons informed during366 and at the conclusion of the Office’s investigations.367 The Act also specifies that families, victims or witnesses must be informed of their right to directly refer their case to a relevant authority, including law enforcement or prosecuting authorities, if they suspect that a serious crime was committed.368 In terms of public outreach, the Act requires the Office to take appropriate steps to create public awareness of the causes, incidence and effects of missing persons.369 Thus, the Office is empowered to engage in outreach activities in relation to its mandate. The Office is also expected to carry out consultations with affected families or organizations representing missing persons to inform its policy recommendations.370 Additionally, the Office can also make recommendations to the authorities, instructing them on how to publish information about missing persons for public knowledge.371
This chapter outlines best practices regarding the provision of information to families of missing persons, including: information on how to access the Office; information on the progress of investigations; and information on the outcomes of investigations. Next, this chapter proposes public outreach measures over the short, medium and long-term.
I. Providing Information to Families of Missing Persons
Informing families of missing persons about how to access the Office will be critical for the OMP’s success, since family members are the primary stakeholders in the search for missing persons. Additionally, providing information to these family members about the progress of an investigation is necessary to guarantee their right to truth.
1) Information on How to Access the Office
The OMP’s ability to reach out to the families of missing persons will be indispensable for its success. Information provided by family members is crucial to assist the Office in formulating and narrowing down hypotheses for investigations and identification of human remains (cf Chapter 7: Identifying Human Remains). To this end, the Office should adopt procedures and engage in practices geared toward facilitating complaints submissions (cf Chapter 4: Planning and Opening the Investigation). In addition, the OMP must engage in a robust outreach campaign that informs families of missing persons about the Office’s basic structure, its key objectives and how to access services. The OMP should engage in this outreach campaign as soon as the Office is formally established.
2) Information on Progress of Investigations
Under the Act, the OMP is required to provide relatives of a missing person with information about the status of an on-going investigation, unless providing this information would hinder the on-going investigation or not be in the best interest of the missing person.372 Keeping families informed throughout the investigation is essential to ensure continued trust in the Office. Therefore, OMP guidelines must specify that requests for information on progress shall be handled fairly and reasonably. In addition, the OMP rules must clarify the two exceptions provided for in the Act. Clear criteria in this respect would reduce officers’ discretion. Finally, refusal to provide information on progress on the basis of these exceptions should be subject to review (cf Chapter 10: Oversight).
The OMP rules must also specify which unit or officer is responsible for providing information on progress. Other countries’ examples may provide guidance in this respect. For instance, according to the regulations governing Kosovo’s GCMP, a case officer who is involved in an investigation is also responsible for maintaining contact with family members during the course of that investigation.373 This contact allows staff members who have an in-depth knowledge of the on-going investigations to play an active role in providing information. Similarly, while the Outreach Unit may channel requests for information, analysts in charge of managing information and updating case files may provide updates on progress directly to family members (cf Chapter 1: Structure and Staffing).
3) Information on Outcomes of Investigations
At the conclusion of its investigation, if the OMP finds the missing person is deceased or his/her whereabouts remain unascertained, it must inform the missing person’s relatives of the circumstances in which he or she went missing and of his or her fate.374 Similarly, 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.375 However in either circumstance, providing information to relatives is subject to the Office’s obligation of confidentiality under OMP Act section 15.376 A broad interpretation of the scope of confidentiality under section 15 could deprive families of essential information regarding the circumstances in which the person went missing. Thus, the Office should only grant confidential status to witness information in exceptional circumstances in which compelling reasons require confidentiality to guarantee the witness’ safety. In the majority of cases, granting confidentiality to protect witness identity and other identifying information is sufficient (cf Chapter 8 on Witness Protection).
II. Public Outreach
Outreach activities of any transitional justice mechanism should extend to public dissemination of information about the OMP’s mandate, internal structure, working procedures and progress toward fulfilling its mandate.377
Outreach initiatives are critical to the OMP’s success. First, awareness about the Office, its mandate and powers is low among the general public and affected families. Local civil society groups, such as the Affected Families Forum (AFF) have observed that nearly 90% of the families with whom they have worked were unaware of the OMP or its mandate.378 Second, as the ICTJ observes, transitional justice mechanisms must engage in effective outreach initiatives on an on-going basis to address public misconceptions and misunderstandings about their work.379 Effective and context-specific outreach initiatives will play a key role in addressing these issues. In this respect, the OMP must design and implement short, medium and long-term outreach measures.
1) Short-Term: Immediate Dissemination of Information
The ICTY and the International Criminal Tribunal for Rwanda (ICTR) failed to engage in public outreach campaigns as soon as they were established.380 This provided media and politicians in these regions the opportunity to freely influence the public discourse and attitudes about the ICTY and ICTR.381 Consequently, public perception about the ICTY was exceedingly negative in Serbia during the ICTY’s mandate period, and remains so even today.382 The experiences in the former Yugoslavia and Rwanda indicate that transitional justice mechanisms must engage in outreach activities as soon as they are set up. The OMP should disseminate basic information about itself, its future role and proposed activities. This allows the OMP to educate the public about its future activities and clarify any misconceptions that may exist about it in the public domain. An early outreach initiative of this nature is especially relevant in Sri Lanka due to the rumours and misleading information about the OMP in the public domain.383
The Special Court for Sierra Leone (SCSL) organized town hall meetings at district and chiefdom levels to educate the public about its mandate.384 This was done as soon as the Special Court was set up, even prior to the court adopting a formal outreach strategy.385 Similarly, in Cambodia, the task force responsible for establishing the Extraordinary Chambers in the Courts of Cambodia (ECCC) produced an introductory booklet aimed at educating the public about the Court and its role.386
Early dissemination of information about the OMP in Sri Lanka would require the Office to establish effective linkages with District Secretariats, Divisional Secretariats and Grama Niladaris as per OMP Act section 12(e).387 The OMP could provide local level entities with basic information about the Office’s purpose and structure as well as the manner in which it could be accessed by victims or their families. This is a prudent approach to adopt in Sri Lanka, since the general public has greater links with officials at the local government level in comparison to central government institutions. The Outreach Unit could disseminate this information to local authorities in the form of pamphlets, brochures or small booklets. Subsequently, the Outreach Unit could publish advertisements in all the major Tamil, Sinhala and English newspapers and on electronic media directing victims and their families to access their relevant local authorities for comprehensive information about the OMP.
2) Medium-Term: Comprehensive Outreach Strategic Plan
Although ad hoc measures may be sufficient to carry out immediate dissemination of information about the OMP, the success of the Office’s outreach program would depend on adopting a thoughtful and comprehensive strategic outreach plan.388 A strategic outreach plan could inter alia help the OMP:
• Identify its key target audiences;
• Manage the limited resources available for outreach initiatives;
• Clearly delineate the responsibilities of the outreach staff;
• Identify key entities to collaborate with, so as to engage in effective outreach; and
• Organize and plan its long-term outreach activities and funding requirements.
The ICTJ recommends that every section in a transitional justice mechanism be involved in the process of developing a strategic outreach plan. When applying this to the context of the OMP, the Tracing Unit, Victim and Witness Protection Division and the OMP Secretariat should be involved in creating the Office’s outreach strategy. The ICC took this approach when it designed its strategic outreach plan in 2006.389 The External Relations Working Group of the ICC, which devised this strategic plan, had representatives from the ICC’s Presidency, Prosecutor’s Office and Registry.390 The group designed the strategic outreach plan based on input it received from each section. The Outreach Plan should be designed based on pre-existing information regarding the affected demographic and penetration of various media within these affected demographics TV channels, newspapers, social media, posters in key locations). It would be useful for the Office to conduct surveys and mapping exercises to ensure that its plan is appropriately tailored to the demographic of each province and district.
The outreach strategic plan of the OMP should outline broad and overarching guidelines to direct the implementation of its outreach activities to cater to different socio-cultural contexts and time periods. For example, the Outreach Mission Statement of the Special Court for Sierra broadly identified the underlying objectives of the Special Court’s outreach initiative391 and recommended the implementation of the Court’s outreach program to meet these goals.392 The adoption of this flexible methodology allowed the SCSL to successfully organize and adapt its outreach activities to suit the diverse cultural practices of Sierra Leone’s different districts.
Therefore, the OMP should plan and design a flexible strategic outreach program in consultation with all Office sections. Since this task would require a high degree of coordination between different sections of the OMP, the Office’s Secretariat should take the lead in coordinating this effort (cf Chapter 1: Structure and Staffing).
3) Mid- to Long-Term: Establish an Outreach Unit
Once the OMP adopts a strategic outreach plan, the Office must establish a professional and specialized unit to organize and coordinate its outreach activities in line with the outreach strategic plan (cf Chapter 1: Structure and Staffing). The value of a dedicated Outreach Unit becomes apparent when one considers the role played by the Outreach and Public Affairs Section of the SCSL. During its almost decade-long existence, the SCSL’s Outreach Section conducted almost ten thousand outreach activities including five thousand video screenings of trials and three thousand town hall meetings around the country.393 The success of this dedicated unit was such that it was hailed as the SCSL’s crown jewel.394 Under section 11(e), the OMP should establish a similar Outreach Unit as well as regional offices, which could enable decentralization of the OMP’s outreach activities and increase the Unit’s reach.395
The Outreach Unit will have to undertake a number of context-specific outreach activities. The OMP Act requires the Office to submit an annual public report to Parliament.396 In order to broadly disseminate this report, the Outreach Unit should liaise with community level leaders and organize interactive community level question-and-answer sessions with regard to the annual report’s findings. This is extremely important in the Sri Lankan context because only a small number of individuals are likely to obtain the OMP’s annual report and peruse its yearly activities.
The Outreach Unit should also harness the full potential of traditional and social media platforms to ensure its success. In relation to traditional media, the Outreach Unit should develop a comprehensive media plan, in coordination with national media institutions, for its future outreach initiatives.397 With regard to social media, the Outreach Unit should utilize the full potential of Facebook and Twitter, since youth at both the urban and rural level in Sri Lanka increasingly has access to these social media platforms.398
Finally, the Outreach Unit should consider establishing a free, public telephone helpline, which would allow individuals to seek information about the OMP or clarify its progress in relation to complaints made. This strategy was successful when the ECCC Victims Unit created an effective link between the public and the court.399 In addition, the Outreach Unit could set up a free messaging service to answer queries and clarify doubts that the public may have related to its activities.400

Chapter 10: Oversight

The OMP Act calls for limited oversight over the Office’s activities. Only the Office’s finances are made explicitly the object of annual parliamentary oversight. Accordingly, the Act requires the Office to submit annual reports to Parliament, presumably detailing its financial activities for the relevant year.401 The Act also states that the Auditor-General will audit the Office’s accounts pursuant to Article 154 of the Sri Lankan Constitution.402
Legislative or governmental oversight is a popular approach adopted by entities like Kosovo’s GCMP and BiH’s MPI. For instance, the regulations governing Kosovo’s GCMP require the Commission to submit periodic and annual reports to the Government of Kosovo.403 Similarly, BiH’s MPI is required to submit annual reports to the co-founders of the body, the ICMP and the Council of Ministers of BiH.404 Despite its popularity, legislative or governmental oversight does not take place consistently throughout a given time period and is more often than not limited to a review of an entity’s financial activities.
The Office, its Members and staff are also subject to judicial oversight. However, the scope of this judicial oversight is limited. The Act states that orders, decisions, acts or omissions of the OMP cannot be questioned in any proceeding or court of law, unless it is by way of the Supreme Court’s fundamental rights jurisdiction or the Court of Appeal’s writ jurisdiction.405 Furthermore, no civil or criminal proceedings are valid against OMP Members or staff for good faith acts.406
Since the OMP Act limits legislative and judicial oversight over OMP’s activities, the Office must establish additional oversight mechanisms. These mechanisms should monitor and review the investigative, victim and witness protection and administrative tasks of the Office on a consistent basis over a given time period.
This chapter outlines specific recommendations for an independent oversight unit, procedures for internal oversight, and finally, a complaint mechanism.
I. Independent Oversight Unit
An independent and victim oversight mechanism to monitor the OMP’s core activities will be a prerequisite to establish public confidence in the Office. Many individuals and groups that were consulted prior to establishing the OMP have emphasized the importance of having an independent oversight unit comprised of family member representatives of missing persons.407 Such an oversight mechanism, which constantly monitors the core activities of the OMP and suggests improvements for its functioning, will bolster the Office’s legitimacy and transparency.
The MPI of BiH has an Advisory Board with six representatives nominated by family associations of missing persons. The Board primarily monitors MPI activities, which include tracing missing persons, providing financial support to family members of missing persons (when appropriate) and setting up a centralized database on missing persons.408 The presence of an Advisory Board to monitor MPI core functions has created greater transparency and strengthened linkages between the MPI and family member associations of missing persons.409
Therefore, the OMP should consider establishing an independent Oversight Unit under OMP Act section 11(e).410 This Unit should have representatives from families and other organizations involved in the search for missing persons. Notably, the members to the Advisory Board under the MPI are chosen on the basis of ethnic diversity and gender equality.411 Following such best practice will be crucial within the Sri Lankan context as well.
Best practices in BiH show that a victims’ oversight mechanism is responsible for monitoring the core activities of the MPI. Ideally, therefore, the proposed oversight unit should be able to monitor and review activities such as de novo data collection, investigative prioritization decisions and victim/witness protection decisions/measures taken by the Office. The Unit should be given the power to monitor these activities and highlight discrepancies or concerns and make recommendations where appropriate. The Unit’s should make its findings and recommendations public to ensure transparency.
II. Procedures for Internal Oversight
Entities dealing with missing persons need to display the highest levels of transparency and accountability when carrying out their work. Such bodies often have intricate procedures in place to ensure adequate internal oversight over their financial, managerial and administrative activities.
To illustrate this point, BiH’s MPI has a carefully crafted tripartite mechanism comprised of a Steering Board,412 Board of Ministers413 and Supervisory Board414 to guarantee transparency and ensure accountability. These three entities respectively review and scrutinize the managerial, legal and financial activities within the MPI. The Steering Board of the MPI is formally tasked with supervising and evaluating the activities of the MPI’s Board of Directors.415 This mechanism is one form of managerial oversight, since the Board of Directors is responsible for MPI management and organisation. The MPI’s Board of Directors is responsible for ensuring the legality of the Institute’s work while the Supervisory Board reviews and inspects the MPI’s financial reports, annual report, the annual balance sheet and accounting books. Along similar lines, Kosovo’s GCMP vests internal oversight over some of the Commission’s activities on the Head of the Commission’s Administrative Unit.416
The OMP Act does not mention explicitly the internal entity that will exercise oversight over the Office’s financial and managerial activities. The most viable option for the Office would be to utilize its powers under section 26(1)417 and vest powers of internal financial and managerial oversight on the Head of the OMP Secretariat, since the Secretariat is in any case responsible for the overall administration of the Office under the Act.418
III. Complaint Mechanism
Many individuals and groups consulted prior to the OMP Act adoption emphasized the Office’s need to establish a formal complaint mechanism.419 The strong public demand for a complaint mechanism stems from victims’ negative experiences with Sri Lanka’s past CoIs. Some of these Commissions were marred with allegations such as requests for sexual bribes, rudeness and overall insensitivity towards victims and their families.420 The complaint mechanism should be accessible to all victims, witnesses and families of victims who engage with the OMP. Information about the complaint mechanism should be included in the material distributed by the Office as part of its outreach activities (cf Chapter 9: Outreach). The Office must enable victims to request the confidentiality of their complaints or to seek other witness protection measures when they fear that their complaints may trigger retaliation. Granting confidentiality must be balanced against due process concerns that may require that the identity of the complainant be disclosed. The Victim and Witness Protection Division must decide these cases.
First, victims, witnesses or families of victims who encounter OMP staff violating the Office’s proposed code of conduct (cf Chapter 1: Structure and Staffing) should have recourse before the complaint mechanism. Such recourse would enable acts of rudeness or insensitivity running afoul of values like professionalism and respect for human dignity within the code of conduct to be directly addressed. The Office’s internal rules should specify immediate termination if any staff member is proven to violate the values and principles in the code of conduct. A similar approach is adopted in Nepal, whereby the CIEDP internal rules allow proceedings to be initiated against any Commission member who has a prima facie case of bad conduct against him or her.421
Second, the Bosnian Law on Missing Persons allows individuals to lodge complaints in accordance with the country’s Law on Administrative Procedure if an information request made to the MPI is met with an unsatisfactory answer.422 This very same procedure is also applicable to a party wishing to challenge the denial or granting of financial support to an individual under the BiH Law on Missing Persons.423 Similarly, in Sri Lanka, the complaint mechanism should be made available to relatives of missing persons who may wish to challenge a denial of information by the Office under section 13(1)(c) or the non-issuance of an interim report pending investigations under section 13(1)(a)(i) and information on progress on the basis of 13(1)(c). Additionally, a person engaging with the OMP should also be able to access the complaint mechanism to challenge any discriminatory treatment by the OMP.424
Therefore, the Office complaint procedure should allow individuals to lodge complaints in situations in which a staff member breached either the proposed code of conduct or obligations under the OMP Act. The Office could establish such a broad complaints procedure by utilizing its rulemaking powers under OMP Act section 26(1). An Oversight Committee located within the Secretariat may examine complaints (cf Chapter 1: Structure and Staffing). The outcome of the complaint should be communicated to the complainant in writing within a reasonable time. In the event a complaint is not examined within three months, or if the complainant has reasons to believe that his or her complaint was not treated fairly, the Office must offer a measure of review of the decision. One option is to enable complainants to raise the issue before the Victim-based Oversight Committee, which may recommend reconsideration of the decision. In case of the Oversight Committee’s systematic failure to address complaints, the Victim-Based Oversight Committee may decide to publicize the matter.

Conclusion

Over the coming months the OMP will need to make a number of strategic choices to ensure that it is capable of successfully fulfilling its broad and ambitious mandate.
To do this, the OMP must define its internal structure and processes and recruit and specialized staff. Additionally, the OMP will need to devise a number of rules, guidelines and protocols to facilitate the day-to-day functioning of its activities and ensure that investigations are carried out in accordance with international standards and best practices.
It is crucial that the OMP seeks the relevant expertise to devise these rules, guidelines and protocols before commencing its investigations. In addition, the Office must also establish a process for their periodic review. This will ensure that the Office builds on lessons learnt from the first few months of its operation and keeps improving protocols and processes to ensure the smooth collaboration between various units, sub-units and divisions and the efficient carrying out of investigations. A degree of flexibility is advantageous to ensure that the OMP will adapt to (1) new understandings of the most efficient way to receive information, and (2) changing needs of the Office and community.

Annexure 1: List of Main Recommendations

Chapter 1: Structure and Staffing
1) Structure
i. The OMP must set up information management processes to collect, centralize, analyse and store information. Sub-units may be created within the Tracing Unit to perform these functions
ii. The OMP must set up additional units such as a Policy Unit, an Outreach Unit, and a Psychosocial Support Unit.
iii. The Policy Unit should contain a Redress Sub-Unit to liaise with credible prosecutors and investigators and assist victims to pursue justice.
iv. The Outreach Unit should comprise a Complaints Desk to facilitate complaint-making on missing persons’ cases.
v. The OMP must set up expert units and committees to assist with the performance of its functions including: an Investigative Expert Committee, a Forensic Expert Committee, an Information Technology Unit and a Gender Unit.
vi. In order to guarantee the respect of the OMP’s internal rules and guidelines, the OMP must set up an Oversight Committee within the Secretariat.
vii. The OMP must consider setting up a Victim-Based Oversight Committee to monitor the Office’s strategic decisions and make recommendations as appropriate.
2) Staffing
i. The OMP should formulate staff recruitment schemes to guide the hiring process.
ii. Recruitment principles must ensure non-discrimination, gender parity, proficiency in English Tamil or Sinhalese and local expertise.
iii. The OMP must devise guidelines to assist the recruitment of staff for specific units and sub-units.
iv. The OMP must design a vetting process to screen out individuals with serious criminal records or those implicated in human rights violations.
v. The screening process must also ensure that recruited individuals have a high degree of integrity, are able to maintain confidentiality and to empathize with the experience of families of the missing.
vi. The OMP must formulate a code of conduct to regulate interaction between OMP staff and individuals who engage with the Office.
Chapter 2: Trainings
i. OMP staff must be continuously trained on gender sensitivity, ethical conduct and sensitivity towards vulnerable persons.
ii. OMP staff must be trained on the handling and preservation of physical evidence, on the security of digital data and physical evidence, and the Office’s procedures and protocols.
iii. The OMP should conduct periodic trainings to improve the technical skills of investigators, analysts and protection personnel on interview techniques, on-site investigation techniques, data management, forensics, data analysis, and victim and witness protection.
Chapter 3: Witness Protection
i. The OMP must issue rules to define “witnesses” for the purpose of protection in accordance with international guidelines.
ii. The OMP must devise guidelines to assess threats to witnesses and to assist the determination of appropriate protection measures.
iii. The Witness and Victim Protection Division (the Division) must issue rules regarding the terminating of protection measures.
iv. The Division must issue rules to define confidentiality. Confidentiality must only extend to witnesses’ identity, identifying information and the nature of protection granted, unless compelling security reasons justify the granting of confidentiality to other information.
v. In case of a confidentiality breach, the OMP should investigate the matter and initiate contempt proceedings against staff members and/or terminate their services as appropriate.
vi. In case of confidentiality breach, the Victim and Witness Protection Division should reassess the threat and adopt additional protection measures as necessary.
vii. Provided informed consent is obtained, the OMP should disclose witnesses’ identity to law enforcement or prosecutorial authorities to assist victims to pursue justice.
viii. The Division must adopt or facilitate witness management methods ranging from strengthened self-protection capacities to identity change and permanent relocation.
Chapter 4: Opening and Planning an Investigation
1) Opening an Investigation
i. The OMP must adopt policies to facilitate the complaint-making process.
ii. There must be a clearly identified point of contact for individuals who approach the OMP to make a complaint.
iii. The OMP should create a Complaints Desk within the Outreach Unit.
iv. The Complaints Desk should allow for individuals to file complaints in person or via mail, email or fax.
v. When a complaint is made, the OMP must use forms in all three languages to record essential information including: a missing person’s name, place and date of birth, marital status, occupation, address, date and details of last news/circumstances of disappearance, rank for military personnel/combatants, and as detailed information as possible regarding the case.
vi. The OMP must consider prioritizing information received from previous commissions for the opening of an investigation, especially from those relatives who have already made complaints to other bodies.
vii. The OMP must devise a system to sort out duplicates.
viii. The OMP must conduct preliminary examinations to determine whether it could reasonably be believed that a person is unaccounted for or that his or her whereabouts are unknown.
ix. The OMP must devise guidelines regarding what information to seek in order to establish the context in which the person went missing and the weight that should be given to different types of information.
2) Planning
i. The OMP should map sources, stakeholders, and sites and should establish a national search plan.
ii. The OMP should ensure that the decision to prioritize cases is impartial, transparent and justified.
iii. The OMP should prioritize the most recent cases for investigation.
iv. The OMP should also prioritize cases for which there is already substantial evidence, and high profile cases.
v. The OMP must consider prioritizing investigations into clusters of cases (cases that present similar patterns and were carried out according to the same modus operandi), and searches of places of detention.
vi. OMP Members must receive technical input from the Forensic Expert Committee and the Investigative Expert Committee.
vii. The OMP should facilitate victim participation through consulting victim families and by enabling the Victim-Based Oversight Committee to exercise some oversight over the decision.
Chapter 5: Receiving and Procuring Information
1) Receiving Data Gathered by Third Parties
i. The OMP must identify relevant governmental entities with custody over Commission of Inquiry (CoIs) data and enter into formalized data transfer agreements to enable to systematic retrieval of information.
ii. The OMP should engage with individuals who were involved in past CoIs to assist with the re-examination and comparison of data from previous CoIs.
2) Procuring Statements and Documents for Investigations
i. The Office must use standards forms to ensure that information received is comprehensive and, if necessary, adapt these forms to take into account the specificities of the Sri Lankan context.
ii. The OMP should ensure that investigators conducting interviews are specifically trained in investigative best practices also geared toward criminal investigation.
iii. The OMP should ensure that investigators do not disclose information regarding the progress of the investigation or the OMP’s findings to witnesses, other than information already publicly accessible.
iv. The OMP should ensure that interviewers conduct interviews in manners, locations and times that maximize privacy and comfort for witnesses.
v. The OMP should ensure that interpreters are properly trained to ensure that they are following rules for professional conduct.
vi. The OMP should document the chain of custody of physical evidence received or procured to assist criminal courts in assessing its probative value.
Chapter 6: Ongoing investigations
1) Searches of Premises
i. When conducting a search, the OMP investigators must secure the premises to protect evidence.
ii. The OMP investigators should note the particulars of the place that is to be searched prior to commencing the search by, inter alia, photographing and videotaping the site and recording observations.
iii. The OMP must prepare and strictly adhere to search protocols.
iv. The OMP must meticulously document the search through taking detailed notes and record keeping of the chain of custody
v. The OMP must also record chain of custody of photographs, recordings, or notes documenting the search.
2) Mass Grave Investigations
i. The Office must carry out searches for mass graves systematically and methodically and therefore seek relevant expertise.
ii. Once the OMP identifies a potential gravesite, the OMP must document its existence and characteristics prior to excavation.
iii. The OMP must seek the assistance of relevant authorities to ensure that the sites are secured and protected from any interference.
iv. The OMP must facilitate information sharing regarding the exhumation process with relatives and concerned parties.
v. The OMP must develop protocols and standards relating to the excavation and exhumation of mass graves.
vi. In order to ensure the respect of these standards and best practices, the OMP must enter into agreements with the various entities and agencies involved in mass graves investigations.
vii. The OMP must also devise guidelines regarding the handling and reburying of human remains in a way that preserves the dignity of the remains.
viii. The OMP should adopt protocols to carefully document excavation and exhumation processes.
Chapter 7: Identifying Human Remains
i. The OMP should adopt standard forms to systematically collect ante mortem data from relatives including information on the circumstances in which the person went missing and other relevant information including medical and physical traits.
ii. The OMP should train personnel and adopt protocols for the collection of biological reference points from relatives.
iii. All relatives should be provided with simple consent forms that clearly explain the intended use of biological samples and the associated risks.
iv. The OMP may offer to the relevant Magistrate’s Court to conduct post mortem DNA analysis.
v. The OMP must adopt the various identification methods (visual identification, traditional matching and DNA matching) cumulatively.
vi. The OMP may seek expertise to create a missing persons’ database from various sources and decide on its identification methods.
Chapter 8: Data Storage
1) Security Recommendations
i. The OMP should prepare guidelines and protocols to govern database maintenance and security.
ii. The OMP should vest responsibility for database maintenance and security on a competent expert unit.
iii. The OMP should adopt procedures to prevent unauthorized access to the database and to cover the handling, transportation, deletion, and storage of evidence.
iv. The OMP should adopt rules to ensure confidentiality and prevent misuse of biological and genetic Data.
v. These rules must be in line with international standards governing the handling and security of biological and genetic data.
vi. The OMP should adopt strict rules to prevent evidence tampering and/or sabotage.
vii. The OMP should designate secure storage areas for evidence, and adopt rules to limit access to storage areas to authorized OMP officers.
viii. The OMP must adopt protocols to record the removal or addition of any evidence from such storage.
2) Preservation
i. The OMP should enter into logistical agreements with relevant entities in order to seek expertise and assistance on the preservation of biological material.
ii. The OMP should enact specific procedures as applicable to the storage of different types of biological material.
iii. The OMP should adopt protocols for packaging and sealing of evidence to prevent contamination.
iv. The OMP must adopt protocols for the labeling of evidence to facilitate its classification and prevent loss of evidence.
v. The OMP must adopt protocols for the storing of physical evidence, ensure preservation and avoid contamination.
Chapter 9: Information to Families and Public Outreach
1) Providing Information to Families of Missing Persons
i. The OMP should devise guidelines regarding procedures and practices to facilitate complaint submissions.
ii. OMP guidelines must specify that requests for information on progress shall be handled fairly and reasonably and in accordance with the OMP Act.
iii. OMP guidelines must specify that requests for information on progress shall be handled fairly and reasonably and in accordance with the OMP Act.
iv. The OMP must set up procedures to review decisions to refuse the communication of updates on progress.
v. The OMP must provide as comprehensive information as possible to families on outcomes of investigations.
vi. To ensure the respect of families’ right to truth, the OMP should only grant confidential status to witness information in exceptional circumstances.
2) Public Outreach
i. The OMP should disseminate basic information about itself, its future role and proposed activities.
ii. The OMP should establish effective linkages with District Secretariats, Divisional Secretariats and Grama Niladaris.
iii. The OMP should adopt guidelines for its outreach activities taking into account different socio-cultural contexts.
iv. The OMP should design a flexible strategic outreach plan in consultation with all Office sections.
v. The OMP should establish a professional and specialized unit to organize and coordinate its outreach activities in line with the outreach strategic plan.
vi. The OMP should establish regional offices and Outreach Units to decentralize the OMP’s outreach activities and increase the Unit’s reach.
vii. The Outreach Unit should liaise with community level leaders to implement its activities.
viii. The Outreach Unit should develop a comprehensive media plan, in coordination with national media institutions.
ix. The Outreach Unit should establish a free, public telephone helpline to allow individuals to seek information about the OMP or clarify its progress in relation to complaints made.
Chapter 10: Oversight
1) Independent Oversight Unit:
i. The OMP should consider establishing an independent Victim- Based Oversight Unit with affected families’ representatives.
ii. The members of the Unit should be chosen on the basis of ethnic diversity and gender equality.
iii. The Unit should be given the power to monitor the OMP’s activities and highlight discrepancies or concerns and make recommendations where appropriate.
iv. The Unit should make its findings and recommendations public to ensure transparency.
2) Procedures for Internal Oversight
i. The OMP should vest powers of internal financial and managerial oversight to the Head of the OMP Secretariat.
3) Complaint Mechanism
i. The OMP should establish a formal complaint mechanism.
ii. The complaint mechanism should be accessible to all victims, witnesses and families of victims who engage with the OMP.
iii. Information about the complaint mechanism should be included in the material distributed by the OMP as part of its outreach activities.
iv. The OMP complaint procedure should allow individuals to lodge complaints against in staff members who violated the code of conduct or their obligations under the OMP Act.
v. The Victim and Witness Protection Division must decide whether to grant confidentiality of complaints taking into account protection needs and due process concerns.

Annexure 2: Relevant Procedures and Protocols

Chapter 2: Training
Witness Interview: Checklist for Direct Witness Accounts
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 46 – 47), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Chapter 5: Receiving and Procuring Information
Missing Persons Form
ICRC, Management of Dead Bodies after Disasters: A Field Manual for First Responders, 2009 (p. 36 – 40), https://www.icrc.org/eng/assets/files/other/icrc-002-0880.pdf.
Dead Missing Person Information: Checklist for Information to be Provided by Authorities
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 25), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Event Documentation: Checklist
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 43), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Information on Persons to be Collected: Checklist for Living Persons see A – E
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 44 – 45), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Witness Interview: Checklist for Direct Witness Accounts
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 46 – 47), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Chapter 6: On-Site Investigations
Indicators to Locate and Actions to Secure Mass Graves
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 26 – 27), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Documentation of Human Remains: Checklist for Preparation and Documentation of Human Remains
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 28 – 29), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Appropriate Behaviour and Necessary Actions regarding the Dead and the Mourning Process by the Relatives; ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 21 - 24), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Immediate Management of Human Remains: Checklist for Collection and Transport
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 30 – 32), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Exhumation in Absence of Forensic Expertise: Procedure Checklist
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 35 – 37), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Emergency or Temporary Burial of Human Remains: Checklist
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 38 - 40), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Human Remains Surface Findings: Guideline for Non-specialists
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 48 – 53), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Chapter 7: Identifying Human Remains
Information on Persons to be Collected: Checklist for Dead Persons see F
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004, (p.44 – 45), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Human Remains in a Hospital Mortuary: Checklist for Documentation
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 33 – 34), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf.
Dead Bodies Identification Form
ICRC, Management of Dead Bodies after Disasters: A Field Manual for First Responders, 2009, (p. 32 – 35), https://www.icrc.org/eng/assets/files/other/icrc-002-0880.pdf.
Body Inventory Sheet
ICRC, Management of Dead Bodies after Disasters: A Field Manual for First Responders, 2009 (p. 42), https://www.icrc.org/eng/assets/files/other/icrc-002-0880.pdf.
Family Tree for Relative DNA Data Reference
ICRC, Missing People, DNA Analysis, and the Identification of Human Remains, (p. 47), https://www.icrc.org/eng/assets/files/other/icrc_002_4010.pdf.
Human Remains Identification: Data Value chart I (p. 13) and II (p. 22)
ICRC, Missing People, DNA Analysis, and the Identification of Human Remains, https://www.icrc.org/eng/assets/files/other/icrc_002_4010.pdf.
Identification of Human Remains with only External Examination: Checklist
ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004 (p. 41 – 42), https://www.icrc.org/eng/assets/files/other/icrc-002-858.pdf
 
ENDNOTES
1 Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act, No. 14 of 2016, [Act Establishing the Office on Missing Persons].
2 Secretariat on Reconciliation Mechanisms, Open Dialogue with Civil Society SCRM Takeaways 20th September 2016, at http://media.wix.com/ugd/bd81c0_6dbc839ccfdc48b0b28c6d2433ba94dc.pdf (accessed 20 November 2016).
3 Act Establishing the Office on Missing Persons, supra 1, section 10(1)(a).
4 International Committee of the Red Cross [ICRC], Living with uncertainty: Needs of the families of missing persons in Sri Lanka, (July 2016), p. 31, available at: https://www.icrc.org/en/document/sri-lanka-families-missing-persons (accessed 20 November 2016), [living with uncertainty].
5 Consultation Task Force on Reconciliation Mechanisms, Interim Report: The office on Missing Persons Bill and Issues concerning the missing, the Disappeared and the Surrendered (August 2016) p. 67, [CTF Interim Report].
6 See generally, Sri Lanka Campaign for Justice, The Paranagama Commission has done great damage. Now that damage must be repaired (6 July 2016) available at: https://www.srilankacampaign.org/paranagama-commission-done-great-damage-now-damage-must-repaired/ (accessed 27 October 2016) [The Paranagama Commission has done great damage].
7 Act Establishing the Office on Missing Persons, supra 1, section 10(1)(a).
8 Ibid, section 10.
9 Ibid, section 27.
10 Ibid.
11 Ibid, section 10.
12 Ibid, sections 11(c), 26(1).
13 Ibid, section 17.
14 Ibid, section 11(e).
15 Ibid, section 17.
16 Ibid, section 16(1).
17 Ibid, section 11(e).
18 Ibid, section 18(3).
19 Ibid, section 17(1).
20 See, infra, Chapter 5: Receiving and Procuring Information and chapter 6: On-Site Investigations.
21 See, infra, Chapter 7: Identifying Human Remains.
22 See, infra, Chapter 8: Data Storage.
23 See, infra, Chapter 7: Identifying Human Remains.
24 Act Establishing the Office on Missing Persons, supra 1, section 13(1)(h): “to create, manage and maintain a database which will include all particulars concerning missing persons.”
25 Ibid, section 13(k).
26 Ibid, section 10(2)(b).
27 Ibid, sections 13(1)(c), 13(1)(d), 13(1)(i), 13(1)( j), 13(1)(k)(v).
28 Ibid, section 13(e).
29 Ibid, section 18(4).
30 Ibid, sections 13(1)(h) & 15(3).
31 Ibid, section 11(c): “to issue from time to time, rules and guidelines, which may include gender-sensitive policies.”
32 Ibid, section 11(d).
33 Ibid, section 11(c).
34 Ibid, section 11(d): “The OMP shall have the following general powers to appoint and dismiss staff and consultants and to request secondment of public officers to the OMP.”
35 Ibid., section 16 (2): “There may be appointed by the OMP, such officers and staff as may be necessary to assist the OMP in the exercise, performance and discharge of its powers, duties and functions as set out in this Act.”
36 The International Center for Transitional Justice (ICTJ) endorsed this approach to staff recruitment in Lebanon’s proposed Independent National Commission for the Missing and Forcibly Disappeared. The ICTJ in this instance recommended staff requirement to be done on the basis of the gender-equality goals in Lebanon’s National Action Plan for Human Rights. ICTJ, The Missing in Lebanon Inputs on the Establishment of the Independent National Commission for the Missing and Forcibly Disappeared in Lebanon (January 2016) p 10: “[...] staffed in accordance with the gender-equality goals in the National Action Plan for Human Rights in Lebanon (2014–2019), which should inform all of the commission’s hiring practices,” [The Missing in Lebanon].
37 Jo Baker, Reconciling Truth and Gender: Lessons for Sri Lanka, Law and Society Trust (December 2011), Pp. 22-23.
38 Sri Lanka HR Commission says public awareness campaign needed urgently to dispel misinformation about OMP (22 August 2016) Colombo Page, available at: http://www.colombopage.com/archive_16B/Aug22_1471887516CH.php (accessed 2 October 2016) [HRCSL Recommendation].
39 CTF Interim Report, supra 5, p. 45.
40 Dr. Bishnu Pathak, Nepal’s Enforced Disappearance Commission: Roles of International Community, Transcend Media Service (18 May 2015), available at: https://www.transcend.org/tms/2015/05/nepals-enforced-disappearance-commission-roles-of-international-community/#_ednref44 (accessed 2 October 2016).
41 Act Establishing the Office on Missing Persons, supra 1, section 16(1).
42 Ibid, section 17(2).
43 Ibid, section 12(b).
44 International Commission on Missing Persons, Agreement on Assuming the Role of Co-Founders of the Missing Persons Institute of BIH, August 2005, at http://www.icmp.int/?resources=agreement-of-assuming-the-role-of-co-founders-of-the-missing-persons-institute-of-bosnia-and-herzegovina (accessed 20 November 2016), article 5(c)(stating that the initial staff of the Institute will be taken over from the staff employed in the Federation Commission on Tracing Missing Persons and the Republika Srpska Office on Detained and Missing Persons, on the: basis of professional abilities, relevant working experience and in a manner that shall take into account national representation and gender equality, whose final number and composition shall be determined by the Board of Directors of the Institute) [MPI Co-Founders Agreement].
45 Act Establishing the Office on Missing Persons, supra 1, section 12(d).
46 The Missing in Lebanon, supra 36, p. 17.
47 International Commission on Missing Persons, Bosnia and Herzegovina, Missing persons from the Armed conflicts of the 1990s: A Stocktaking, Sarajevo, 2014, p. 58, available at: http://www.icmp.int/wp-content/uploads/2014/12/StocktakingReport_ENG_web.pdf (accessed 20 November 2015), [ICMP, Stocktaking].
48 Ibid, p. 42.
49 HRCSL recommendations, supra 38.
50 The Missing in Lebanon, supra 36, pp. 20-21.
51 UNODC, Good practices for the protection of witnesses in criminal proceedings involving organized crime, New York, 2008, p. 48 [UNODC, Good practices for the protection of witnesses].
52 International Criminal Court, Rules of Procedure and Evidence (2000), Rule 19: “a) witness protection and security; (b) humanitarian and criminal law; (c) logistics/administration; (d) psychology in criminal proceedings; (e) gender and cultural diversity; (f) children, in particular traumatized children; (g) elderly persons; (h) persons with disabilities; (i) social work and counseling; (j) healthcare; and (k) interpretation and translation.”
53 Rome Statute of the International Criminal Court, 17 July 1998, article 43(6): “The Registrar shall set up a Victims and Witnesses Unit within the Registry.......The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence”.
54 Act Establishing the Office on Missing Persons, supra 1, section 18(4).
55 HRCSL Recommendations, supra 38.
56 UNODC, Good practices for the protection of witnesses, supra 51, p. 48.
57 Act Establishing the Office on Missing Persons, supra 1, section 14.
58 Ibid, section 24(1)(h).
59 Ibid, section 16(3).
60 The internal rules of the Nepalese CIEDP, for instance, empower the Commission to frame and implement a code of conduct to be followed by the Commission Chairman and other members. Commission of Investigation on Enforced Disappeared Person, Rule 2072 (13 March 2016), section 40, [CIDEP, rule 2072]. Accordingly, a code of conduct specifically tailored to suit the Nepalese context was adopted by the Commission in July 2015.
61 ICTJ, Essential Best Practices for Truth Commissions, (December 2009), available at: http://www.iccnow.org/documents/ICTJ_SDN_briefing_AUPD-TJRC.pdf (accessed 10 October 2016). See also OHCHR, Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice, New York and Geneva, 2015, pp. 33-34, http://www.ohchr.org/Documents/Publications/CoI_Guidance_and_Practice.pdf (accessed on 5th October 2016).
62 CTF Interim Report, supra 5, p. 14.
63 The Paranagama Commission has done great damage, supra 6.
64 Act Establishing the Office on Missing Persons, supra 1, section 26(1): “The OMP may make rules for matters for which rules are required to be made under this Act.”
65 CTF Interim Report, supra 5, p. 46: “The number of letters received from women brings home to the CTF that disappearance is a gendered crime. While the vast majority of those who are missing/disappeared are men, those who are seeking truth and justice on behalf of the men who have been disappeared are women. Submissions received also point to the fact that the vast majority of those who will come before the OMP once it is established will be women, as was the case with the Paranagama Commission.”
66 Act Establishing the Office on Missing Persons, supra 1, section 11(c).
67 Vasuki Nesiah et al., Truth Commissions and Gender: Principles, Policies, and Procedures, International Center for Transitional Justice, (July 2006), p. 12, available at: https://www.ictj.org/sites/default/files/ICTJ-Global-Commissions-Gender-2006-English_0.pdf (accessed 13 October 2016), [Truth Commissions and Gender].
68 Office of the United Nations High Commissioner for Human Rights, Analytical study focusing on gender-based and sexual violence in relation to transitional justice (30 June 2014), ¶ 25 [Gender and TJ].
69 Truth Commissions and Gender, supra 67, p. 12.
70 Carla Koppell and Jonathan Talbot, Strengthening Colombia’s Transitional Justice Process by Engaging Women, The Institute for Inclusive Security, March 2011, p. 3, available at: http://www.peacewomen.org/assets/file/Resources/NGO/transjust_strengtheningcolombiastransitionaljusticebyengagingwomen_march2011.pdf (accessed 15 October); See further, Gender and TJ, supra 68, ¶ 17: “[I]n Peru, for instance, the truth commission established a specific gender unit.”
71 Gender and TJ, supra 68, ¶17.
72 See, e.g., National Commission on the Disappearance of Persons, Nunca Más, 1986, available at: http://www.desaparecidos.org/nuncamas/web/english/library/nevagain/nevagain_278.htm (accessed: 17 October 2016) [Nunca Más], Chapter IV: the first interviewers could not continue because of secondary traumatization.
73 Family members may be asked to describe the victim’s physical appearance, any distinguishing characteristics, the clothes the victim was last seen in when he/she disappeared as well as the general circumstances surrounding the disappearance.
74 Act Establishing the Office on Missing Persons, supra 1, section 13(1)(h).
75 Ibid, 12(d) : The OMP Act does not empower the OMP to carry mass grave excavations and exhumations.
76 ICRC, Missing People, DNA Analysis, and the Identification of Human Remains, p.33, available at: https://www.icrc.org/eng/assets/files/other/icrc_002_4010.pdf (accessed 20 November 2016), [DNA Analysis, and the Identification of Human Remains]. It is preferable to have a geneticist present, in order to clarify the suitability of a relative as a reference.
77 UNODC, Good practices for the protection of witnesses, supra 51, p. 49.
78 UNDP, Development of a Witness and Victim Support System Croatian experience: good practices and lessons learned, 2014, p. 65, available at: http://www.eurasia.undp.org/content/dam/rbec/docs/UNDP-CROATIA%20-%20Witness%20and%20Victim.pdf (accessed 20 November 2016).
79 Ibid, p.41.
80 Gert Vermeulen, EU Standards in Witness Protection and Collaboration with Justice, Institute for International Research on Criminal Policy, 2005, p. 157.
81 Commonwealth Secretariat, Victims of Crime in the Criminal Justice Process, Meeting of Commonwealth Law Ministers and Senior Officials Sydney, Australia, (11-14 July 2011), p. 23 [Victims of Crime in the Criminal Justice Process].
82 Ibid.
83 Act Establishing the Office on Missing Persons, supra 1, section 18(4).
84 Chris Mahony, The Justice Sector Afterthought: Witness Protection in Africa, Institute for Security Studies, 2010, pp. 164-168.
85 The European Parliament and The Council, Directive 2012/29/EU of 25 October 2012 establishing Minimum Standards On The Rights, Support And Protection Of Victims, (25 October 2012), ¶61.
86 Ibid.
87 Aruni Jayakody, Victim and Witness Protection: The Need for Further Reform, South Asian Centre for Legal Studies (SACLS), September 2015 [SACLS, Victim and Witness Protection].
88 Act Establishing the Office on Missing Persons, supra 1, section 18(1): “There shall be a Victim and Witness Protection Division within the OMP that shall protect the rights and address the needs and concerns of victims, witnesses and relatives of missing persons.”
89 Ibid, section 18(3).
90 Ibid.
91 Ibid, section 13(1)(g).
92 Ibid, section 11.
93 Ibid, section 19.
94 Ibid, section 13.
95 Ibid, section 19(3).
96 Ibid, section 46.
97 Niran Anketell, Commentary on the Bill Titled Office on Missing Persons, SACLS, June 2016 [Commentary on the OMP Bill], p. 4.
98 Ibid.
99 SACLS, Victim and Witness Protection, supra 87, pp. 8, 9.
100 Ibid, p. 9.
101 Ibid.
102 Ibid.
103 Act Establishing the Office on Missing Persons, supra 1, section 18(3).
104 UNDCP, Model Witness Protection Bill, 2000, section 2(c)(i), available at: https://www.unodc.org/pdf/lap_witness-protection_2000.pdf (accessed 20 November 2016), [Model Witness Protection Bill].
105 Ibid, section 2(c)(ii).
106 Law of the Republic Of Indonesia Concerning Witness And Victims Protection Number 13, 2006, section 31, available at: http://www.lpsk.go.id/upload/Buku%20UU%20No%2013%20(English%20Version).pdf (accessed 20 November 2016), [Indonesian Law on Witness and Victim Protection]
107 BiH Witness Protection Program Law, 2003, section 2(2), available at: https://www.unodc.org/doc/enl/2009/Bosnia_Herzegovina_Witness_Protection_Programme_R09-12.PDF (accessed 20 November 2016) [BiH Witness Protection Program Law],
108 Witness Protection Act Kenya, 2012, at http://www.unodc.org/res/cld/document/ken/witness-protection-act_html/Kenya_Witness_Protection_Act_Revised_Edition_2012.pdf (accessed 20 November 2016), section 3(2) [Witness Protection Act Kenya].
109 Peru’s Law No. 27378, article 2, available at: http://peru.justia.com/federales/leyes/27378-dec-20-2000/gdoc/ (accessed 20 November 2016), [Peru Law on Witness Protection].
110 Resolution of the Office of the Attorney General of Colombia No. 0-5101 of 2008, article 4.6, available at: http://www.icbf.gov.co/cargues/avance/docs/resolucion_fiscalia_5101_2008.htm (accessed 20 November 2016).
111 Act Establishing the Office on Missing Persons, supra 1, section 26(1).
112 As at present an enforced disappearance does not constitute a crime under Sri Lanka’s domestic law. See in this respect Human Rights Council, Report of the OHCHR Investigation on Sri Lanka (OISL) (16 September 2016) UN Doc. A/HRC/30CRP.2, ¶496.
113 Act Establishing the Office on Missing Persons, supra 1, section 18(3).
114 Victims of Crime in the Criminal Justice Process, supra 81, pp.7-8, 19.
115 Ibid.
116 Indonesian Law on Witness and Victim Protection, supra 106, section 28; Peru Law on Witness Protection supra 109, article 21; Witness Protection Act Kenya, supra 108, section 6; Act No. 6981, An Act Providing for a Witness Protection, Security and Benefit Programme and for Other Purposes, 24 April 1991, section 3 (Philippines), available at: http://www.lawphil.net/statutes/repacts/ra1991/ra_6981_1991.html (accessed 20 November 2016) [Philippines Law on Witness protection].
117 Model Witness Protection Bill, supra 104, section 4(2).
118 UNODC, Good practices for the protection of witnesses, supra 51, p. 61; Indonesian Law on Witness and Victim Protection, supra 106, section 28(b); Philippines Law on Witness protection, supra 116, section 3(c)
119 Peru Law on Witness Protection, supra 109, article 21.2; Hong Kong Witness Protection Ordinance (2000), available at: http://www.legco.gov.hk/yr98-99/english/bills/c0151_e.htm (accessed 20 November 2016) [Hong Kong Witness Protection Ordinance]. Section 3 states that a witness protection programme may be arranged for witnesses whose personal safety or well-being may be at risk as a result of being witnesses. This is wide enough to encompass threats to property.
120 International Commission of Jurists, Witness Protection in Nepal : Recommendations from International Best Practices, August 2011, available at: http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/05/Nepal-witness-protection-analysis-brief-2011.pdf (accessed 20 November 2016), p. 67 [ICJ, Witness Protection in Nepal]; Philippines Law on Witness protection, supra 116, section 3(c); Witness Protection Act Kenya, supra 108, section 6(c).
121 Model Witness Protection Bill, supra 104, section 4(2)(e); Indonesian Law on Witness and Victim Protection, supra 106, section 28(c).
122 Witness Protection Act Kenya, supra 108, section 6(1); Philippines Law on Witness protection, supra 116, section 3(a).
123 UNODC, Good practices for the protection of witnesses, supra 51, p. 62.
124 Act Establishing the Office on Missing Persons, supra 1, section 11(3).
125 ICJ, Witness Protection in Nepal, supra 120, p. 62.
126 Model Witness Protection Bill, supra 104, section 2(c)(i).
127 Philippines Law on Witness protection, supra 116, section 3: “Any person... who has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority, may be admitted into the Program;” Witness Protection Act 112, 1998, available at: http://www.justice.gov.za/legislation/acts/1998-112.pdf (accessed 20 November 2016), section 1 (South Africa).
128 Act Establishing the Office on Missing Persons, supra 1, section 12(a).
129 Ibid, section 12(b).
130 UNODC, Good Practices for the Protection of Witnesses, supra 51, pp. 64-65.
131 ICJ, Witness Protection in Nepal, supra 120, p. 70.
132 See e.g., Witness Protection Act Kenya, supra 108, section 7(1)(a): “A memorandum of understanding shall..... set out the basis on which a participant is included in the programme and details of the protection and assistance which are to be provided.”
133 UNODC, Good Practices for the Protection of Witnesses, supra 51, p. 65; Witness Protection Act Kenya, supra 108, section 7(1)(b) “A memorandum of understanding shall......contain a provision to the effect that protection and assistance under the programme may be terminated if the participant deliberately breaches a term of the memorandum of understanding or a requirement or undertaking relating to the programme.”
134 Ideally, the MoU should be made in the language the party receiving protection is comfortable in, while adequate facilities should exist to ensure that the said party is able to comprehend the MoU.
135 UNODC, Good Practices for the Protection of Witnesses, supra 51.
136 Victims of Crime in the Criminal Justice Process, supra 81, p. 22.
137 Philippines Law on Witness protection, supra 116, section 6.
138 Model Witness Protection Bill, supra 104, section 3; CIEDP Rule 2072, supra 61, Rule 28(7); Indonesian Law on Witness and Victim Protection, supra 106, section 9; Witness Protection Act Kenya, supra 108, section 4(3).
139 For instance receiving the testimony of a relocated victim or witness through video conferencing facilities which distort the voice and face of the protected person.
140 Act Establishing the Office on Missing Persons, supra 1, section 12(c)(iv).
141 CIEDP Rule 2072, supra 61, Rule 28(7).
142 Victims of Crime in the Criminal Justice Process, supra 81, p. 12.
143 Commentary on the OMP Bill, supra 97, p. 15.
144 CIEDP Rule 2072, supra 61, Rule 28(1); BiH Witness Protection Program Law, supra 107, section 6(2); Witness Protection Act Kenya, supra 108, section 23(3).
145 BiH Witness Protection Program Law, supra 107, section 6(2); Philippines Law on Witness protection, supra 116, section 7.
146 Act Establishing the Office on Missing Persons, supra 1, section 13(b).
147 Ibid., section 18(5).
148 BiH Witness Protection Program Law, supra 107, section 6(2).
149 Hong Kong Witness Protection Ordinance, supra 119, section 17(1): “A person shall not, without lawful authority or reasonable excuse, disclose information- (a) about the identity or location of a person who is or has been a participant.... in the witness protection program.”
150 Act Establishing the Office on Missing Persons, supra 1, section 24(1)(i).
151 Ibid, section 24(2).
152 Indonesian Law on Witness and Victim Protection, supra 106, section 41: “disclosing victim or witness’ whereabouts is punishable by imprisonment not less than 3 (three) years and not more than 7(seven) years and by a fine not less than Rp.80.000.000,00 (eighty million rupiahs) and not more than Rp.500.000.000,00 (five hundred million rupiahs).”
153 Philippines Law on Witness protection, supra 116, section 7: “Any person who violates the confidentiality of said proceedings shall upon conviction be punished with imprisonment of not less than one (1) year but not more than six (6) years and deprivation of the right to hold a public office or employment for a period of five (5) years.”
154 Hong Kong Witness Protection Ordinance, supra 119, section 17, ¶1: “disclosing without lawful authority or reasonable excuse the identity or location of a person who is or has been a participant or who has been considered for inclusion in the witness protection programme is a serious offence. The maximum penalty is 10 years’ imprisonment.”
155 Act Establishing the Office on Missing Persons, supra 1, section12(i): “Provided that where a witness consents, the OMP may also inform the relevant authority, of the details of such witness, in order to enable such relevant authority to secure a statement from such witness to be used in the process of investigation.”
156 OHCHR, Protection of Victims and Witnesses, p. 7.
157 Ibid.
158 UNODC, Good practices for the protection of witnesses, supra 51, pp.29-31.
159 REDRESS, Testifying to Genocide: Victims and Witness Protection in Rwanda, available at: http://protectionline.org/files/2012/11/121029ProtectionReport.pdf (accessed 20 November 2016), p. 38 [REDRESS, Testifying to Genocide].
160 UNODC, Good practices for the protection of witnesses, supra 51, p. 31.
161 Model Witness Protection Bill, supra 104, section 3(2)(c).
162 Government of Colombia. Law 418 of 1997, 26 December 1997, available at: http://www. secretariasenado.gov.co/senado/basedoc/ley_0418_1997.html (accessed 15 October 2016). The law provides for the physical protection of the witness.
163 Model Witness Protection Bill, supra 104, section 3(2)(d).
164 UNODC, Good practices for the protection of witnesses, supra 51, pp. 29-30.
165 UNODC, Good practices for the protection of witnesses, supra 51, p. 41.
166 REDRESS, Testifying to Genocide, supra 159, p. 35.
167 Ibid.
168 Amnesty International, Twenty Years of Make-Believe: Sri Lanka’s Commissions of Inquiry, 2009, p. 30, available at: http://www.observatori.org/paises/pais_75/documentos/srilanka.pdf (accessed 20 November 2016) [Twenty Years of Make-Believe].
169 Ibid.
170 Ibid.
171 Act Establishing the Office on Missing Persons, supra 1, section 18(3).
172 UNODC, Good practices for the protection of witnesses, supra 51, p. 41.
173 Indonesian Law on Witness and Victim Protection, supra 106, section 5(1)(j); Witness Protection Act Kenya, supra 108, section 4(2); Philippines Law on Witness protection, supra 116, section 8(a).
174 Indonesian Law on Witness and Victim Protection, supra 106, section 5(1)(j); Witness Protection Act Kenya, supra 108, section 4(2); Philippines Law on Witness protection, supra 116, section 8(a).
175 UNODC, Good practices for the protection of witnesses, supra 51, p. 77.
176 Twenty Years of Make-Believe, supra 168, pp. 30-31; The Sri Lankan Campaign for Peace and Justice, Repairing the Damage of the Paranagama Commission (EyeSriLanka, 14 July 2016), at http://www.eyesrilanka.com/2016/07/14/repairing-the-damage-of-the-paranagama-commission/ ( accessed on 21 October 2016).
177 Act Establishing the Office on Missing Persons, supra 1, section 11(a): “The OMP shall have the following general powers- (a) to enter into agreements, as are necessary to achieve the mandate of the OMP, with any person or organization.”
178 UNODC, Good practices for the protection of witnesses, supra 51, p. 80.
179 Ibid, p. 82.
180 Act Establishing the Office on Missing Persons, supra 1, section 11(a).
181 This was the approach adopted in Colombia. See Colombia, Comisión de Busqueda de Personas Desaparecidas, Plan Nacional de Búsqueda, available at: http://tbinternet.ohchr.org/Treaties/CED/Shared%20Documents/COL/INT_CED_ADR_COL_22512_S.pdf (accessed 20 November 2016). The Colombian National Search Plan details responsibilities of both the Commission for the Search of Missing Persons and all other agencies involved (section 16(1)). In Colombia, the Commission was primarily created to coordinate the search for missing persons (see Decreto 929, 2007, article 2, available at: http://www.comisiondebusqueda.gov.co/index.php/ct-menu-item-3/ct-menu-item-5 (accessed 10 November 2016). Therefore, the establishment of a National Search Plan was an essential part of its mandate.
182 Act Establishing the Office on Missing Persons, supra 1, section 12(b).
183 Ibid.
184 Ibid, section 12(a).
185 Ibid, section 27.
186 In Iraq, the investigation was able to progress to some extent due to the provision of information by parties who had knowledge about the existence of mass graves. See Human Rights Watch, Iraq: State of the Evidence, 2004, at https://www.hrw.org/report/2004/11/03/iraq-state-evidence (accessed 17 October 2016), p. 14, [Iraq: State of the Evidence].
187 Act Establishing the Office on Missing Persons, supra 1, section 11(e).
188 CIEDP Rule 2072, supra 61, rule 5(1)(c).
189 Ibid, rule 20(2).
190 Ibid, rule 5(1).
191 Nunca Mas, Report of the National Commission of the Disappearance of Persons (Argentina), 1984, available at: http://www.desaparecidos.org/nuncamas/web/english/library/nevagain/nevagain_001.htm (accessed 22 November 2016) [Nunca Mas]; See also Supreme Decree No. 355 Creation of the Commission on Truth and Reconciliation, available at: http://www.usip.org/sites/default/files/file/resources/collections/commissions/Chile90-Charter.pdf (accessed 20 November 2016) (Chile) [Decree creating the Chilean CTR].
192 ICRC Guiding Principles/ Models Law on the Missing, 2009, available at: https://www.icrc.org/en/document/guiding-principles-model-law-missing-model-law (accessed 20 November 2016), p. 7, [ICRC Model Law on Missing Persons].
193 Act 971(14 July 2005), (Colombia), article 4, available at: historico.presidencia.gov.co/leyes/2005/julio/ley971140705.pdf (accessed 20 November 2016).
194 See for sample forms : Follow-up to the 28th International Conference of the Red Cross and Red Crescent ICRC Report on missing, (2- 6 December 2003), pp. 133-144 available at: https://www.icrc.org/eng/assets/files/other/icrc_002_1103.pdf (accessed 20 November 2016) [ICRC Follow-up report on missing].
195 Act Establishing the Office on Missing Persons, supra 1, section 12 (b).
196 Act Establishing the Office on Missing Persons, supra 1, section 27.
197 See generally, Commentary on the OMP Bill, supra 97.
198 ICRC Model Law on Missing Persons, supra 192, p.7.
199 Decree creating the Chilean CTR, supra 191.
200 Ibid, article 32.
201 Ibid, article 33.
202 Ibid.
203 Ibid.
204 In jurisdictions, such as the United States, that keep detailed records of the missing, studies have shown that the first 12-24 hours are the most critical in locating the missing person and that the odds of the missing person decrease as time passes. See, e.g,, Kevin Kepple, Marianne Epstein, Lori Grisham, By the numbers: Missing persons in the USA, USA Today (25 September 2014), available at: http://www.usatoday.com/story/news/nation-now/2014/09/23/missing-persons-children-numbers/16110709/ (accessed 12 November 2016) .
205 Nunca Más, supra 191, Part IV, Creation and Organization of the National Commission on the Disappeared.
206 Ibid.
207 CIEDP Rule 2072, supra 61, rule 14.
208 Committee on Missing Persons in Cyprus, “Terms of Reference and Mandate,” article 8, available at: http://www.cmp-cyprus.org/about-the-cmp/terms-of-reference-and-mandate/ (accessed 20 November 2016). In Cyprus, the Commission on Missing Persons was headed by a committee of three members: one Turkish Cypriot, one Greek Cypriot and one international member. This committee would decide on when to begin investigations by examining all cases put forth to the committee, and simply choosing between them. The committee rotated the selection of cases to investigate, beginning with the Turkish member and then moving to the Greek member.
209 ICMP, Stocktaking, supra 47, p. 33.
210 Act Establishing the Office on Missing Persons, supra 1, section10(e) : “The OMP shall have the mandate to collate data related to missing persons obtained by processes presently being carried out, or which were previously carried out, by other institutions, organizations, Government Departments and Commissions of Inquiry and Special Presidential Commission of Inquiry.”
211 Ibid, sections 12(c), 12(e), 12(g).
212 Ibid, section 12(i).
213 Ibid, section 10(1)(e).
214 Ibid, section 12(b).
215 CTF Interim Report, supra 5, p.21.
216 Kishali Pinto-Jayawardena, A Legacy to Remember: Sri Lanka’s Commissions of Inquiry 1963- 2002, The Law and Society Trust, September 2010, p. 24 [Sri Lanka’s Commissions of Inquiry].
217 Ibid.
218 M. C. M. Iqbal, Enforced Disappearance of Persons in Sri Lanka: Legacy and Ongoing Challenges , Sri Lanka Brief, 5 May 2016, available at: http://srilankabrief.org/2016/05/enforced-disappearance-of-persons-in-sri-lanka-legacy-and-ongoing-challenges-m-c-m-iqbal/ (accessed 24 October 2016) [Iqbal, Enforced Disappearance of Persons in Sri Lanka].
219 Sri Lanka’s Commissions of Inquiry, supra 216, p. 24.
220 Commentary on the OMP Bill, supra 97, p. 11.
221 Report on the Second Mandate of the Presidential Commission on Inquiry into Complaints of Abductions and Disappearances, August 2015, p. 12, available at: https://www.colombotelegraph.com/wp-content/uploads/2015/10/Paranagama-Report-.pdf (accessed 20 November 2016).
222 Act Establishing the Office on Missing Persons, supra 1, section 11(a).
223 Law on Missing Persons, 2004, (Bosnia), section 23, available at: http://www.icmp.int/wp-content/uploads/2014/08/law-on-missing-persons.pdf (accessed 20 November 2016), [ Bosnia, Law on Missing Persons ]. This section provides that the cooperation with other competent authorities in BiH that have data relevant to tracing missing persons is regulated under a special agreement that defines the mode of cooperation and all other important issues.
224 Law on Missing Persons, 2011, (Kosovo), article 8(1), available at: http://www.kuvendikosoves.org/common/docs/ligjet/Law%20on%20missing%20persons.pdf (accessed 20 November 2016). The Commission is a governmental body which heads, supervises, harmonizes and coordinates the activities with local and international institutions, cooperates with Institutions and International Organizations and the other stakeholders with regards to clarification of the fate of missing persons.
225 Act Establishing the Office on Missing Persons, supra 1, section 12(e).
226 Ibid, section 11(a).
227 Ibid, section 12(c)(ii).
228 Living with uncertainty, supra 4, p. 31.
229 The International Committee of the Red Cross’ Confidential Approach, International Review of the Red Cross, Volume 84, Number 887, Autumn 2012, p. 1140: “Subject to the applicable law, the ICRC reserves the right at any time to decide what type of information it wishes to share with the parties (State or non-State authorities, or third parties). Decisions to transmit confidential information are taken by the ICRC alone on the basis of agreed internal procedures.”
230 See ICRC’s role in the Nagorno-Karabakh conflict, Report of the Secretary General, Missing persons, August 2016, ¶28: “In December 2015, ICRC provided the parties concerned with an updated list containing the names of 4,496 people registered as missing by its delegations in Baku and Yerevan and its mission in the affected area. In that endeavour, ICRC worked closely with the Azeri and Armenian commissions on prisoners of war, hostages and missing people,” [Report of the Secretary General on Missing Persons].
231 Monique Crettol and Anne-Marie La Rosa, The Missing and Transitional Justice: The Right to Know and the Fight Against Impunity, International Review of the Red Cross, Volume 88, Number 862 (June 2006), available at: http://corteidh.or.cr/tablas/a21929.pdf (accessed 24 October 2016).
232 EAAF, Investigative Program, available at: http://eaaf.typepad.com/investigative_training/, (accessed 18 October 2016), [EEAF, Investigative Program].
233 Act Establishing the Office on Missing Persons, supra 1, section 12(c)(i).
234 Ibid, section 12(c)(ii).
235 For sample forms see ICRC Follow-up report on missing, supra 194, pp. 133-144.
236 Report of the Secretary General, Missing persons, supra 230, ¶28, August 2016.
237 This form can be found at the following link: https://www.interpol.int/INTERPOL-expertise/Forensics/DVI-Pages/Forms (accessed 20 November 2016).
238 ICRC, Accompanying Families of Missing Persons, A Practical Handbook (March 2013), p. 23, available at: https://www.icrc.org/eng/assets/files/publications/icrc-002-4110.pdf (accessed 20 November 2016).
239 D.J Ravindran, M.Guzman & B. Ignacio, Handbook on Fact-finding and Documentation of Human Rights Violations, Asian Forum for Human Rights Development, Bangkok, 1994, p. 32 [Handbook on Fact-finding and Documentation of Human Rights Violations]; D. F. Orentlicher, Bearing Witness: The Art and Science of Human Rights Fact-Finding, Harvard Human Rights Journal, Vol. 3, 1990, p. 116.
240 Intelligence source and information reliability rating systems are used in intelligence analysis. Several systems may be used. These include the 4x4 system: see Europol Information Management, available at: http://www.izgubenonajdeno.mvr.gov.mk/Uploads/Europol%20Products%20and%20Services-Booklet.pdf (accessed 20 November 2016). Or the 5x5x5 system used by the police some countries including the UK, available at: http://library.college.police.uk/docs/APPref/how-to-complete-5x5x5-form.pdf (accessed 20 November 2016).
241 M. C. Bassiouni & C. Abraham, Siracusa Guidelines for International, Regional and National Fact-finding Bodies, International Institute for Higher Studies in Criminal Sciences, Cambridge, Antwerp, Portland, Intersentia, 2013, , guidelines 8.5 and 9.3.8 [Siracusa Guidelines].
242 Handbook on Fact-finding and Documentation of Human Rights Violations, supra 239, p. 175.
243 Siracusa Guidelines, supra 241, guidelines 9.3.1 and 9.3.2.
244 U.S. Department of State, Working with Interpreters: A Checklist to Evaluate Qualifications, July 2015, available at: https://www.state.gov/documents/organization/245381.pdf (accessed 20 November 2016).
245 See, e.g., New Zealand Ministry of Justice, Guidelines for Interpreters, Sept. 2016, available at: https://www.justice.govt.nz/about/lawyers-and-service-providers/service-providers/interpreting-in-courts-and-tribunals/guidelines-for-interpreters/ (accessed 20 November 2016); J. Krueger and D. Wilen, Checklist for Interpreters, 2000, available at: https://www.quia.com/files/quia/users/esol9817/CAT-III-for-SSP/Interpreter_Checklist (accessed 20 November 2016) .
246 Maropeng, The Missing Persons Task Team: Fleshing Out The Bones Of The Apartheid Era, 20 June 2016, available at: http://www.maropeng.co.za/news/entry/the-missing-persons-task-team-fleshing-out-the-bones-of-the-apartheid-era (accessed 20 November 2016).
247 See the following link for the questionnaire: http://www.desaparecidos.org/nuncamas/web/english/library/nevagain/nevagain_180.htm (accessed 20 November 2016).
248 Act Establishing the Office on Missing Persons, supra 1, section 12(c)(i).
249 Nunca Mas, supra 191, chapter VI.
250 Iraq: State of the Evidence, supra 186, p. 14.
251 Ibid.
252 Ibid, section 24 (d).
253 Siracusa Guidelines, supra 241, guideline 8.6.
254 Ibid, guideline 8.7: “physical evidence should be properly preserved and protected from contamination while in the custody of the fact-finding body.”
255 Act Establishing the Office on Missing Persons, supra 1, section 12 (f).
256 Ibid, section 12(g).
257 Ibid, section 12(d).
258 Ibid, section 12(f).
259 Ibid.
260 Ibid.
261 Ibid, section 12(g).
262 Dermot Groome, The Handbook of Human Rights Investigation: A Comprehensive Guide to the Investigation and Documentation of Violent Human Rights Abuses, Northborough, Mass, Human Rights Press, 2001, p.85, [The Handbook of Human Rights Investigation].
263 Ibid, p. 86.
264 For example, under the internal rules of Nepal’s CIEDP, the investigative officer is required to prepare a deed of search and seizure mentioning the details and current location of the documents/objects that have been seized from a given place. CIEDP Rule 2072, supra 61, Rule 19.
265 The Handbook of Human Rights Investigation, supra 262, p. 84.
266 CIEDP Rule 2072, supra 61, Schedule 6.
267 Act Establishing the Office on Missing Persons, supra 1, section 12(d).
268 ICRC, Operational Best Practices Regarding The Management of Human Remains And Information On The Dead By Non-Specialists, 2004, p. 26, available at: https://www.icrc.org/en/publication/0858-operational-best-practices-regarding-management-human-remains-and-information-dead (accessed 20 November 2016). For instance, in BiH the MPI was able to access aerial and satellite images: see ICMP, Stocktaking, supra 47, p. 94.
269 Ibid.
270 Iraq, Law on Protection of Mass Graves, 2006, article 4, available at: http://www.icmp.int/wp-content/uploads/2014/08/law-on-protection-of-mass-graves.pdf (accessed 10 October 2016) [Iraq, Law on Protection of Mass Graves].
271 Act Establishing the Office on Missing Persons, supra 1, section 12(e). For best practices see EAAF, Recommendations, supra 232.
272 Iraq, Law on Protection of Mass Graves, supra 270, Article 6.
273 Iraq: State of the Evidence, supra 186, p. 25.
274 Act Establishing the Office on Missing Persons, supra 1, section 12 (e): the Office has the power “to request assistance necessary for the achieving of its mandate, from any State, governmental, provincial, or local authority or agency, or any officer thereof.”
275 Radio Free Europe Radio Liberty, Identifying Chechnya’s Dead, 19 November 2008, available at: http://www.rferl.org/a/EIdentifying_Chechen_Dead/1350872.html (accessed 26 October 2016).
276 Living with uncertainty, supra 4, p. 17.
277 EAAF, Recommendations, supra 232.
278 Act Establishing the Office on Missing Persons, supra 1, section 11(a). For an analysis of the problems encountered in South Africa in the absence of formal agreements between the parties involved in excavations, see J.D Aronson, The Strengths and Limitations of South Africa’s Search for Apartheid Era Missing Persons, 2011, International Journal of Transitional Justice. 5, No. 2, p. 264.
279 See EAAF, Recommendations, supra 232.
280 Living with uncertainty, supra 4, p. 32.
281 EAAF, Recommendations, supra 232.
282 DNA Analysis, and the Identification of Human Remains, supra 76, p. 11.
283 Ibid, p. 12.
284 ICMP, Stocktaking, supra 47, p. 62.
285 Ibid.
286 DNA Analysis, and the Identification of Human Remains, supra 76, p. 11.
287 Ibid, p. 13.
288 Ibid.
289 DNA Analysis, and the Identification of Human Remains, supra 76, p. 35.
290 ICMP, Stocktaking, supra 47, p. 50.
291 Ibid, pp. 6, 7, 15.
292 Act Establishing the Office on Missing Persons, supra 1, section 12(c).
293 Ibid, section 12(e).
294 DNA Analysis, and the Identification of Human Remains, supra 76, pp. 15, 39.
295 Ibid.
296 Ibid, pp. 15-18.
297 ICMP, Stocktaking, supra note 47, p. 10.
298 EAAF, Recommendations, supra 232.
299 Act Establishing the Office on Missing Persons, supra 1, section 12(d).
300 ICMP, Stocktaking, supra 47, p. 33; p. 54; DNA Analysis, and the Identification of Human Remains, supra 76, p. 33.
301 DNA Analysis, and the Identification of Human Remains, supra 76, p. 15.
302 Ibid, p. 33.
303 Ibid.
304 Ibid, p. 43.
305 Ibid, p. 43. See also, UNESCO, The International Declaration on Human Genetic Data, 2003, available at: http://portal.unesco.org/shs/en/ev.php-URL_ID=3479&URL_DO=DO_TOPIC&URL_SECTION=201.html (accessed 9 October 2016) [International Declaration on Human Genetic Data].
306 See, e.g., ICMP, Standard Operating Procedure for Sampling Bone and Tooth Specimens from Human Remains for DNA Testing at the ICMP, available at: http://www.icmp.int/wp-content/uploads/2015/04/icmp-sop-aa-136-2-doc.pdf (accessed 26 October 2016).
307 European Court on Human Rights, Tzilivaki and others v. Cyprus (App. No. 23082/07), Decision, 14 October 2014, ¶6.
308 Interpol, White Paper DVI, p. 3, available at: https://www.interpol.int/Media/Files/INTERPOL-Expertise/DVI/White-Paper-DVI (accessed 21 November 2016).
309 ICMP, Stocktaking, supra 47, p. 56. This cost does not include the associated costs incurred throughout the investigative process.
310 Living with uncertainty, supra 4, p. 31.
311 S. Cordner and H. McKelvie, Developing standards in international forensic work to identify missing persons, December 2002, International Review of the Red Cross, No. 848, p. 880.
312 DNA Analysis, and the Identification of Human Remains, supra 76, pp. 13, 15.
313 Skype interview with Marte Myhre Tunheim and Claudia Rivera, FAFG, 26 October 2016.
314 Skype interview with Andreas Kleiser, Director for Policy and Coordination, ICMP, 19 October 2016.
315 Act Establishing the Office on Missing Persons, supra 1, titled “An Act To Provide For The Establishment Of The Office On Missing Persons; To Provide For The Searching And Tracing Of Missing Persons; To Provide Assistance To Relatives Of Missing Persons; For The Setting Up Of A Database Of Missing Persons; For Setting Out The Procedures And Guidelines Applicable To The Powers And Functions Assigned To The Said Office; And To Provide For All Matters Which Are Connected With Or Incidental To, The Implementation Of The Provisions Of This Act.”
316 Ibid, sections 10(1)(e), 13(1)(h).
317 Report of the Secretary General, Missing persons, supra 230, ¶28.
318 ICMP, ICMP Launches Missing Persons Online Inquiry Center, 9 February 2011, available at: http://www.icmp.int/press-releases/missing-persons-online-inquiry-center/.
319 ICRC, Missing Persons in the Western Balkans, 2 June 2015, available at: https://www.icrc.org/en/document/missing-persons-western-balkans (accessed 24 October 2016).
320 ICRC, The Ante-mortem/Post-mortem Database: An Information Management Application For Forensic Data, December 2013, available at: https://shop.icrc.org/publications/the-ante-mortem-post-mortem-database-an-information-management-application-for-forensic-data.html (accessed 24 October 2016)[ICRC AM-PM database]. The Kosovo GCMP used the AM-PM database after signing a Software Handover Agreement with the ICRC in 2012.
321 Skype interview with Andreas Kleiser, supra 314.
322 See Interpol, Recommendations on the Use of DNA for the Identification of Missing Persons and Unidentified Human Remains, available at: https://www.interpol.int/Media/Files/INTERPOL-Expertise/DNA/INTERPOL-Best-practice-principles-Recommendations-on-the-Use-of-DNA-for-the-Identification-of-Missing-Persons-and-Unidentified-Human-Remains (accessed 25 October 2016).
323 Skype interview with Marte Myhre Tunheim and Claudia Rivera, supra 313.
324 ICRC AM-PM database, supra 320.
325 Iqbal, Enforced Disappearance of Persons in Sri Lanka, supra 218.
326 Act Establishing the Office on Missing Persons, supra 1, sections 15(1), 15(2), 15(3).
327 Ibid, section 15(3).
328 Ibid, 12(c)(v).
329 Ibid, 15(1).
330 Bosnia, Law on Missing Persons, supra 223, section 23.
331 Ibid, section 21.
332 UN Secretariat, Secretary-General’s bulletin Information sensitivity, classification and handling, 12 February 2007, U.N. Doc. ST/SGB/2007/6.
333 Ibid, ¶5.4.
334 Ibid, ¶5.1a.
335 Ibid, ¶5.1b.
336 Ibid, ¶5.1c.
337 Ibid, ¶5.1d.
338 International Declaration on Human Genetic Data, supra 305, Preamble: “human genetic data have a special status on account of their sensitive nature since they can be predictive of genetic predispositions concerning individuals...they may have a significant impact on the family, including offspring, extending over generations, and in some instances on the whole group; they may contain information the significance of which is not necessarily known at the time of the collection of biological samples.”
339 UNESCO, The Universal Declaration on Bioethics and Human Rights, 2005, available at: http://portal.unesco.org/en/ev.php-URL_ID=31058&URL_DO=DO_TOPIC&URL_SECTION=201.html (accessed 18 November 2016).
340 International Declaration on Human Genetic Data, supra 305.
341 UNESCO, The Universal Declaration on the Human Genome and Human Rights, 1997, available at: http://portal.unesco.org/en/ev.php-URL_ID=13177&URL_DO=DO_TOPIC&URL_SECTION=201.html (accessed 18 November 2016).
342 International Declaration on Human Genetic Data, supra 305, article 14. See also BiH Witness Protection Program Law, supra 107, section 23: “Persons who are engaged in managing and handling personal information related to confidential data on biological, hereditary, physical, genetic properties and medical data on a missing person shall have the obligation to keep the information confidential and handle them in accordance with established rules for protection of such information.”
343 DNA Analysis, and the Identification of Human Remains, supra 76, p. 41.
344 International Declaration on Human Genetic Data, supra 305, article 14(e): “human genetic data and human proteomic data should not be kept in a form which allows the data subject to be identified for any longer than is necessary for achieving the purposes for which they were collected or subsequently processed.”
345 Act Establishing the Office on Missing Persons, supra 1, section 11(b).
346 Ibid, article 15(2).
347 Ibid.
348 Bosnia, Law on Missing Persons, supra 223, section 23.
349 The Handbook of Human Rights Investigation, supra 262, pp. 76-77.
350 Ibid, p 25.
351 ICMP, ICMP and Libyan Government Sign an Agreement on Cooperation Concerning Missing Persons 12 November 2012, available at: http://www.icmp.int/press-releases/icmp-libya-sign-agreement/ (accessed 25 October 2016).
352 EAAF, Recommendations, supra 232.
353 ICRC, ICRC Report: The Missing and Their Families, 2003, p. 142, available at: https://www.icrc.org/eng/resources/documents/report/5jahr8.htm (accessed 25 October 2016).
354 Ibid.
355 Ibid.
356 DNA Analysis, and the Identification of Human Remains, supra 76, p. 29.
357 See generally, J.O.M Karlsson & M Turner, Long-term storage of tissues by cryopreservation: critical issues, March 1995, available at: http://www.lorentzcenter.nl/lc/web/2012/512/problems/4/Longterm%20storage%20of%20tissues%20by%20cryopreservation.pdf (accessed 18 October 2016).
358 Ibid.
359 See generally, C.W. Kilpatrick, Non-cryogenic preservation of mammalian tissue for DNA extraction: An assessment of storage methods, Biochemical Genetics, No. 40, 2002.
360 DNA Analysis, and the Identification of Human Remains, supra 76, pp. 34-35.
361 See Institute for International Investigations website: http://www.iici.info/.
362 Handbook on Fact-finding and Documentation of Human Rights Violations, supra 239, p. 103.
363 Ibid, p 104.
364 Ibid
365 Ibid
366 Act Establishing the Office on Missing Persons, supra 1, section 13(1)(c).
367 Ibid, section 13(1)(d).
368 Ibid, section 13(i).
369 Ibid, section 13(1)( j).
370 Ibid, section 13.
371 Ibid, section 13(1)(k)(v).
372 Ibid, section 13(1)(c).
373 Regulation No. 15/2012 on the Work of the Government Commission on Missing Persons (Kosovo) available at: http://www.kryeministriks.net/repository/docs/Rregullores_Nr_152012_per_Punen_e_Komisionit_Qeveritar_per_Persona_te_Zhdukur_FINAL__4_.pdf (accessed 13 October 2016), article 21(1.4) [Regulation No. 15/2012].
374 Act Establishing the Office on Missing Persons, supra 1, section 13(1)(d)(i).
375 Ibid, section 13(1)(d)(ii).
376 Ibid, section 15.
377 Clara Ramirez-Barat, Making an Impact: Guidelines on Designing and Implementing Outreach Programs for Transitional Justice, New York, January 2011, p.7, available at: ICTJ-Global-Making-Impact-2011-English.pdf (accessed 24 October 2016) [Making an Impact].
378 R. L. Jayakody, A. Wamanan and F.Shaheid, Govt Shuns Missing Persons Families, 3 September 2016, available at: http://nation.lk/online/2016/09/03/govt-shuns-missing-persons-families.html (accessed 24 October 2016).
379 Making an Impact, supra 377, p. 9.
380 S. Ford, How Special is the Special Court’s Outreach Section, 13 March 2012, p. 9, available at: https://ssrn.com/abstract=2021370 (accessed 26 October 2016) [Ford].
381 Making an Impact, supra 377, p. 9.
382 R.H. Steinberg, Assessing the Legacy of the ICTY, Martinus Nijhoff Publishers, 23 May 2011, p.111.
383 Colombopage, Sri Lanka HR Commission says public awareness campaign needed urgently to dispel misinformation about OMP, 22 August 2016, available at: http://www.colombopage.com/archive_16B/Aug22_1471887516CH.php (accessed 25 October 2016).
384 Ford, supra 381, p. 2.
385 Making an Impact, supra 377, p. 9.
386 Ibid.
387 Act Establishing the Office on Missing Persons, supra 1, section 12(e).
388 Making an Impact, supra 377, p. 11.
389 International Criminal Court, Integrated Strategy for External Relations, Public Information and Outreach, The Hague, 2007, available at: https://www.icc-cpi.int/NR/rdonlyres/425E80BA-1EBC-4423-85C6-D4F2B93C7506/185049/ICCPIDSWBOR0307070402_IS_En.pdf (accessed 15 November 2016).
390 Making an Impact, supra 377, p 12.
391 Special Court for Sierra Leone, Outreach Mission Statement, Special Court Outreach Report, 2003-2005, “Aim to promote understanding of the Special Court (SC) and respect for human rights and the rule of law in Sierra Leone, to disseminate information and encourage dialogue, to foster two-way communication between the SC and Sierra Leone and to facilitate the participation of all Sierra Leone nationals in the judicial processes of the SC based on equality and mutual respect.”
392 Ford, supra 381, p. 13.
393 Ibid, p. 5.
394 Report on the Special Court for Sierra Leone, Submitted by the Independent Expert Antonio Cassese, (12 December 2006), p. 59, available at: http://www.scsl.org/LinkClick.aspx?fileticket=VTDHyrHasLc=&tabid=176 (accessed 6 October 2016).
395 Act Establishing the Office on Missing Persons, supra 1, section 3(3).
396 Ibid, section 23.
397 See e. g., Organic Law on Establishing and Organizing Transitional Justice, 2013, (Tunisia), available at: http://www.ohchr.org/Documents/Countries/TN/TransitionalJusticeTunisia.pdf (accessed 23 October 2016), article 56: “The Commission shall, within the six months maximum following the nomination of its members, undertake the following preparations.... Develop a comprehensive media plan, in coordination with national media”.
398 M. Hussain, Sri Lankans on Social Media- What we found out, 24 November 2013, available at: http://www.readme.lk/sri-lankans-social-media-out/ (accessed 23 October 2016): “... almost 11.5% of Sri Lanka’s entire population is on Facebook today, with 1,400,000 being male and 720,000 being female, and the age group of 25-34 makes up 33% of the entire base.” See also, R. Hewagama, Social Media Landscape in Sri Lanka, available at: http://socialmedia.lk/blog/wpcontent/uploads/2015/10/Social%20Media%20Landscape%20in%20Sri%20Lanka.pdf (accessed 23 October 2016).
399 Making an Impact, supra 377, p. 18.
400 Ibid, p. 16: Institutions like the ICC and the SCSL have also been using short-messaging services to provide quick answers to questions raised by the general public and timely information to journalists.
401 Act Establishing the Office on Missing Persons, supra 1, section 23.
402 Nepal adopts a similar approach in relation to the finances of its Commission of Investigation on Enforced Disappeared Persons: see, The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071 (2014), available at: http://trc.gov.np/base/file/actsrulesguidelines.pdf (accessed 12 October 2016), article 12(5).
403 Regulation No. 15/2012, supra 374, article 6.4.
404 MPI Co-Founders Agreement, supra 44, article 7.
405 Act Establishing the Office on Missing Persons, supra 1, section 25(1).
406 Ibid, section 25(2)(a).
407 CTF Interim Report, supra 5, p. 67.
408 MPI Co-Founders Agreement, supra 44, article 7.
409 ICMP, Locating and Identifying Missing Persons: A Guide for Families in Bosnia and Herzegovina, available at: http://www.icmp.int/wp-content/uploads/2014/08/locating-and-identifying-missing-persons-a-guide-for-families-in-bih.pdf (accessed 10 November 2016), pp. 7-8 [A Guide for Families in Bosnia and Herzegovina].
410 Act Establishing the Office on Missing Persons, supra 1, section 11(e).
411 A Guide for Families in Bosnia and Herzegovina, supra 410, p. 7: “The Advisory Board comprises of six representatives of family associations of missing persons: two Bosniak, two Croat and two Serb representatives. Women and men are equally represented.”
412 MPI Co-Founders Agreement, supra 44, article 7.
413 Ibid, Article 8.
414 Ibid, Article 9.
415 Ibid, Article 7.
416 Regulation No. 15/2012, supra 374, article 18.
417 Act Establishing the Office on Missing Persons, supra 1, section 26(1).
418 Ibid, section 16(1).
419 CTF Interim Report, supra 5, p. 42.
420 CTF Interim Report, supra 5, p. 14; The Paranagama Commission has done great damage, supra 6.
421 CIEDP Rule 2072, supra 61, Rule 34(6).
422 Bosnia, Law on Missing Persons, supra 223, section 23.
423 Ibid, section 17.
424 Act Establishing the Office on Missing Persons, supra 1, section 14.
 

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