• Local report notes few official probes into the 32 mass graves, no prosecutions of perpetrators and victim identifications via exhumations despite domestic/int’l legal obligations  

Over a decade has passed since the end of the conflict, many issues still remain unresolved. Among them is the significant number of mass graves that have been discovered in the country. In 2014, a report from the Asian Human Rights Commission listed the existence of 28 mass graves, and four more have been discovered since then. However, only a few official investigations have taken place, and yet, none has led to prosecutions or the identification of victims despite the Government’s legal obligation to do so in domestic and international frameworks, and in spite of calls from local communities for exhumations.

Noting this, a recent report on Sri Lanka’s mass graves claimed that by aggregating sources from press articles, Government press releases, and human rights organisations, it is possible to arrive at a total of 32 reported mass graves. The report titled ‘Mass Grave Sites in Sri Lanka: History and Legal Framework’ was issued by the International Centre for Ethnic Studies (ICES). Authored by Sophie Bisping, it looked into several mass graves, and discussed among other matters the legal situation pertaining to investigating mass graves.

Among the mass graves that the report discussed were those found in Sooriyakanda, Chemmani, the Duraiappa Stadium in Jaffna, Matale, Kalavanchikudy, Mannar, and Mannar which were revealed in 1994, 1998, 1999, 2012, 2014, 2013, and 2018, respectively.  

Legal framework

Noting that mass graves are complex sites that involve different regulations and legal frameworks, the report added that from the discovery to the commemoration of a site, there are several steps in the management of a mass grave, each involving legal regulations. In the Sri Lankan context, it added, a few legislative instruments cover several of these steps simultaneously. Thus, with regard to adapting this to the Sri Lankan legal context, five suitable steps were pointed out. Among them are discovery, investigation and identification, prosecution, the rights of the families, and commemoration. The report discussed in detail how laws, regulations and procedures apply to mass graves in terms of the said five steps. “In the domestic context, the Code of Criminal Procedure, and the Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act, No. 14 of 2016 (the OMP Act) prove themselves particularly useful. The OMP functions under the Ministry of Justice and its establishment allowed for the consolidation of disparate laws around the issue of enforced disappearances and mass graves. When it was established, some advocates for the families of the disappeared doubted its credibility and ability to be an impartial actor in mass grave investigations, but, it was still perceived as a competent authority,” the report said, claiming however that several Sri Lankan authors and activists have mentioned that the OMP has lost credibility since the change of Government in 2019, which led to a change in its leadership and severe budget cuts.”

With regard to international law, it was explained that international human rights law and international humanitarian law are relevant to mass grave investigations. While Sri Lanka is a signatory to most United Nations (UN) treaties that set out legal responsibilities pertaining to mass grave sites, those treaties have become binding in domestic law through the passing of national legislation. Therefore, while the State itself is accountable to the International Court of Justice, the report added, if it is found to violate its treaty obligations, citizens cannot raise a similar claim domestically against their own Government if there is no equivalent domestic law that has been passed. It added that this results in a slower integration of human rights conventions into the domestic system, and an example being that despite Sri Lanka’s ratification of the International Convention for the Protection of All Persons from Enforced Disappearance in 2016, the country passed enabling domestic legislation only in 2018. Moreover, for Sri Lanka is not party to the International Criminal Court (ICC), which has jurisdiction to investigate and prosecute individuals responsible for committing genocide, crimes against humanity, war crimes and crimes of aggression, the report said that except in the unlikely case that the UN Security Council votes to refer the situation of Sri Lanka to the ICC, this recourse in international human rights law remains inaccessible.

The creation of mass graves is illegal under both domestic and international law, as per the report.

Best practices

“Exhumations often give rise to new questions and conflicts and must navigate diverse needs and interests,” the report stressed, adding that mass grave sites involve, inter alia, a wide number of actors, including survivors, families of the victims, people living next to the site, activists, journalists, politicians, forensic scientists, Governmental and non-governmental agencies, and even perpetrators. Given the competing demands from the State, the different affected communities, and international organisations, the report said that several principles, which are partly adapted from recommendations of the Bournemouth Protocol (a set of  protocols that bring together legal rules and informed practice to support those protecting and investigating mass grave sites), can be seen as starting points for a broader conversation within the civil society and amongst families of the disappeared for the elaboration of a mass grave investigation. Among them are having a “do no harm” approach, ensuring physical and emotional safety, centering the agency of the community, ensuring independence and impartiality, maintaining confidentiality, maintaining transparency, clear and ongoing communication, and having realistic expectations.

Current situation and the way forward

In conclusion, the report explained that the political and legal challenges to mass grave investigations in Sri Lanka remain high, and that in light of this, it might be necessary to critically assess the need for investigation and the memorialisation of mass grave sites for sustainable post-conflict reconciliation. Emphasising the importance of considering approaches that focus on the needs of the victims’ families rather than on prosecutions, it added that while the ongoing investigation in Mannar shows progress in the inclusion of the families, political barriers to the implementation of both domestic and international laws remain. It added that especially in an unfavourable political environment such as Sri Lanka, where several Government officials have been accused of war crimes, it might not be realistic to expect working Governmental officials to comply with the investigations. This is in a context where out of the seven investigations surveyed in the report, none had led to the desired answers for families of the disappeared who believed that their loved ones might have been victims of a mass burial.

The report added that it is important to clearly delineate the different objectives of an investigation, which often aims at both truth seeking and prosecution: “In Guatemala, in an effort to encourage perpetrators to reveal the truth, it was decided that the testimonies given as part of the truth commission hearings could not be used as evidence in prosecutions. In South Africa, the truth commission acted as a filter to reduce the number of possible criminal prosecutions by providing immunity to individuals who cooperated. In contrast, in Peru, the truth commission provided evidence to criminal prosecutors.”

Regarding the legal situation, it said: “Beyond the political challenge and the impunity of the Government, legal gaps are also an obstacle to mass grave investigations. The lack of clear regulations on the chain of custody for evidence has led to a lack of transparency about the location of the evidence collected from mass graves, how it was collected and preserved, and where it was sent for analysis. This has contributed to a lack of trust in Governmental accounts. In the case of the Matale investigation in 2012, conflicting narratives about the mass grave emerged from different analyses of the evidence and from the possibility that the evidence sent to a laboratory in the United States had been tampered with.”

In addition, it pointed out that given the obstacles to more standard avenues for justice, fostering societal awareness of these issues is necessary and is part of advocating for families of the victims of mass graves. As more mass graves might still be discovered in the future, the report said, it is hoped that centralising historical and legal information on mass graves in Sri Lanka will lay the groundwork for further research and advocacy on this issue.