by Easwaran Rutnam
Basil Fernando
The Criminal Investigations Department (CID) has obtained court approval to send samples of the skeletal remains found in the mass grave in Thiruketheeswaram, Mannar to Florida, USA.
This was despite the families of some of the disappeared raising concerns over the Florida based company.
The lab in Florida had earlier claimed that some skeletal remains found in the Matale mass grave were of dogs and not humans.
Relatives of the disappeared believe the findings on Matale by the company in Florida are incorrect and that a similar ruling may be given on Mannar.
CID sources told The Sunday Leader that the investigations on the Mannar mass grave had taken a back seat as several other high profile incidents were now under investigation.
The CID said that court approval was however sought to send samples from the skeletal remains found in Mannar to Florida to take the investigations forward.
The Working Group on Enforced or Involuntary Disappearances at the conclusion of its visit to Sri Lanka last November, noted that there were problems in the way the mass grave sites in Mannar and Matale had been secured and the samples and evidence handled.
The UN Working Group said there was a critical need to improve the forensic capacity of all those involved in the exhumation and identification of bodies as well as on the criminal investigation.
The mass grave was found when workers at a water supply department, attempted to set up an under the surface, water supply pipe in December 2013.
The area was cordoned off and excavation was carried out and more than 90 skeletal remains were eventually found.
Fears later arose that the remains could be of several people reported missing during and after the war.
The Lessons Learned and Reconciliation Commission (LLRC) in a report had stated that there was credible allegations of abductions of at least 100 people in Mannar.
Excavation work on the mass grave has been suspended on several occasions since 2013 and last was after the grave site began to sink.
The court had however given an order to resume excavation in April after removing water which was resulting in the grave site sinking.
The Asian Human Rights Commission said that the Chemmani mass grave and the Matale mass grave are the only two instances in which some progress was made in terms of a judicial inquiry to discover their backgrounds, however even in those two instances after the beginning of some initial steps mainly due to expressions of public opinion from local as well as international sources, the entire process has been stopped. Many excuses have been given for such stoppages, which are basically of technical nature.
“Close scrutiny of these circumstances clearly indicate that there are far more serious objections to inquiries into mass graves than those which are merely technical. Those serious objections are based on political considerations which should not have entered into considerations relating to inquiries of those considerations about serious crimes which are possibly involved in the burial of many human bodies in a mass grave. Thus there are more serious considerations for the failure to investigate into mass graves should be looked into from the perspectives of the nature of the criminal justice that exists in a particular country. Therefore, probing into a mass grave is in fact, scrutiny into the very nature of criminal justice which in the first place made the possibility of the creation of mass graves followed by a prolonged resistance to uncovering the truth which lies behind such mass graves,” Asian Human Rights Commission chairman Basil Fernando said.
He says the study of mass graves must be considered only as a sub-branch, of the studies into enforced disappearances.
“What made a government directly or indirectly approve the removal of measures for the protection of individuals which are contained in any legitimate criminal justice system, in order to enable enforced disappearances of persons? This question is much wider than a study into merely a particular mass grave. The factors that enable the possibilities of enforced disappearances need to be studied in the first place when trying to understand what is in a mass grave and the reasons for serious obstacles being created for engaging in any real judicial and forensic inquiry into the remains that are found in a mass grave,” he added.
Every mass grave is a symbol of the grave yard of criminal justice – AHRC
The Asian Human Rights Commission (AHRC) says a simple question that arises when a mass grave is discovered in Sri Lanka, is as to whether it is possible to demand the Sri Lankan state to act within the framework of criminal justice in dealing with such a mass grave when in fact such a mass grave is likely to be a mere manifestation of a state policy which allowed the causing of enforced disappearances. Is it possible for a state to act on the basis of the principles of cheka on the one hand and investigate into the same incidents on the basis of criminal justice principles?Thus the issue of one of a very fundamental nature, each mass grave raises this fundamental issue. Neither Sri Lankans nor the international community have been able to face this fundamental issue squarely.
The result of not wanting to face this fundamental issue is that of looking for an escape from facing this situation by considering the enforced disappearances as acts of some officers who acted against the law and against the wishes of the governments in power during the time when such occurrences took place. Thus the real circumstances under which such disappearances took place is being overlooked and another ‘reality’ is being created with the hope of rapidly forgetting these incidents with some excuse that something was done anyway.
However, such escape is not possible because a criminal justice system that was displaced in favour of following the principles similar to that of the Cheka, cannot be restored to its former position without facing up to the fundamental transformation that has taken place and without taking steps to abandon the Cheka approach and to replace it once again with a criminal justice approach.
There has not even been a discussion on that fundamental issue. Therefore, finding a solution is not possible when the problem that is to be resolved is itself acknowledged or understood. The result of continuing in this situation is to allow even the loss of memory of a criminal justice system that existed once. As the memory is, itself being lost there is lesser chance of taking any real initiative to restore the principles of criminal justice once again.
When mass graves are looked into as only a part of the overall problem of enforced disappearances then it is not difficult to understand why so much of obstacles are placed against any genuine investigations into a mass grave when it is discovered. The reactions to such discoveries is to find ways to suppress curiosity about the actual meaning of such a discovery and to sabotage all attempts at a proper investigation into such mass graves. It is this that happened in Chemmani and it is also that which was repeated when the Matale mass grave was discovered. Similar sabotage will continue into any other discoveries in the future. If such responses of denial and sabotage is to be displaced the process of this displacement must begin with the attempt to understand how the basic criminal justice system of Sri Lanka was displaced with a system that follows similar principles as that of the Russian Cheka. This is the first necessary step if we are to come out with any meaningful response which would ultimately have the result of restoring the lost criminal justice system of Sri Lanka.
Every mass grave is a symbol of the grave yard of criminal justice in Sri Lanka.