A ROLE FOR THE ICRC

with Ravi Ladduwahetty-2017-07-31

The Office of the Missing Persons Act, which was originally brought in 2006, was amended in February this year. The Cabinet approved an amendment to the Office of Missing Persons (OMP) Act No. 14 of 2016, by removing Paragraph (a) of Section 11, stripping it of the power to 'enter into agreements, as are necessary, to achieve the mandate of the OMP, with any person or organization.'

The proposal to remove the paragraph was made by Janatha Vimukthi Peramuna (JVP) MP Bimal Ratnayake. "The Legal Draftsman has drafted the amendment to Section 11 of the OMP Act and the Attorney General has confirmed that the provisions of the Draft Bill are not inconsistent with the Constitution and is not subject to any of the prohibitions or restrictions imposed by the 13th Amendment," a Cabinet Memorandum, by Prime Minister Ranil Wickremesinghe, read.

After considering the memo, the Cabinet granted approval to publish the said amendment, to the OMP Act, in the Government Gazette and present it to Parliament for approval.

When the OMP Act was debated in Parliament, JVP Leader Anura Kumara Dissanayake pointed out that MP Ratnayake's proposal had been missed at the Committee Stage of the Bill. The Prime Minister assured the JVP that it will be included in the Act after discussing it with Foreign Minister Mangala Samaraweera.

The aim and objective of the Act is to trace missing persons, which is a very positive step in the right direction, another hallmark of democracy.

Now, this is a function that is performed by the International Committee of the Red Cross (ICRC). It has the mandate for that and this is generally done in instances of armed conflict. There are also provisions in the Geneva Convention for that purpose. This is a process for either combatants or non combatants in the context of armed conflicts.

This has been given legal effect in 2006 with further amendments in 2017. The second aspect is that this Act empowers to provide information of missing persons of their whereabouts. In the international context, that obligation is granted to the ICRC which has all the powers in terms of the resources and the mandates. They also have the institutional knowledge and the capability to handle matters in relation to missing persons, unlike persons who will be appointed to such a Commission which is appointed through a local mechanism. Some of the examples of these are the Manouri Muttetuwegama Commission and the Paranagama Commission, which were seen to have deficiencies as well. They were seen to be deficient and they wanted a well structured mechanism to deal with these.

ICRC

Now, the next question is the manner in which a Missing Person could be classified and designated. One of the definitions of a missing person is a person whose whereabouts is unknown in terms of an armed conflict.

Then, what is relevant and moot in Sri Lanka is in the context of the North East Armed Conflict and it is in this context that the definition of a Missing Person has become very controversial today. This is due to the original definitions which have been provided by the academia, but politicians such as Udaya Gammanpila also have given various interpretations to it as well.

Section 27 of the Office of the Missing Persons Act specifically states and defines a Missing Person, as an individual who is either a combatant or a non combatant, a member of the Armed Forces or Police or a member of a rebel force (read LTTE). However, in the international context, the North East Armed Conflict is not an international armed conflict.

It is the ICRC which has techniques across the borders and those systems are superior to any system that Sri Lanka could come up with. Moreover, the ICRC is very independent in dealing with these matters and they also maintain very professional confidentiality. They have been doing it from the time of World War II and they have the Institutional Capability as well.

This brings to mind an ancient Chinese proverb which says that one must get advice from a person who has swum across the river in the night and not even not swum the river during the day time! It is swimming the river in the night that is more arduous and that advice would be best.

The second aspect of the Office of the Missing Persons Act is the victims of political disturbances or civil unrest of which the supreme examples could be the JVP insurrections in 1971 or 1988-1989.
It will be futile to prove or probe these matters as there is bound to be no evidence in that direction at all!

So, it will be futile for the Government to allocate further funds and resources especially in the backdrop of this moribund and beleaguered economy, at further expense of the tax payer when there is a sensible professional alternative in handing this role by the ICRC. If the government has some extra funds, it can give the ICRC. When it appoints its own people, then that will lead to corruption and also political nuances. Retaining an international organization will also lead to the confidentiality of the matters as well.Furthermore, no one will be able to use the ICRC material for prosecution either, which is also the silver lining in the dark clouds.

This could be reached at raviladu@gmail.com