Proposed Law on Enforced Disappearances will enable military, POLITICAL LEADERS TO BE HAULED UP BEFORE ICC - GL

Has provisions for surrendering such leaders to a foreign state Dangerous legislation when read with OMP Act

The legislation to give effect to the International Convention for the Protection of All persons from Enforced Disappearance, which is currently before Parliament, will spell doom for military and political leaders making way for them to be hauled up before an international war crimes tribunal.

Once the complaint is made, the Sri Lankan state has the power to surrender the person against whom the complaint is made to a foreign party. It can happen notwithstanding the provisions of the Extradition Act

After a study of the provisions of the bill presented to Parliament on March 7, former External Affairs Minister Prof. G.L. Peiris told Daily Mirror that the bill has a serious provision that would enable any foreign country or organization acting on behalf of a foreign country to make a complaint regarding an enforced disappearance. Once that complaint is made, he said, Sri Lanka was totally committed to implement the international convention. “Once the complaint is made, the Sri Lankan state has the power to surrender the person against whom the complaint is made to a foreign party. It can happen notwithstanding the provisions of the Extradition Act,” he said. He said there was also the danger of the surrendered person ending up as a defendant in the International Criminal Court (ICC) if the foreign state concerned were a signatory to the Treaty of Rome that provided for the setting up of the ICC.

“Then the received state becomes a conduit through which the person is handed over to the jurisdiction of the ICC. The fact that Sri Lanka is not a signatory to the Rome Treaty makes no difference. That could be achieved through a third party,” he said.

Alongside, he said the proposed law embodied concept of command responsibility, and therefore a person could be taken to task for anything that might have happened within the scope of his power.

“It means the person against whom the complaint is made needs not have done anything. This places, in grave jeopardy, military and political leaders,” he added.

Also, he said there is a provision for the establishment of a special High Court in Colombo to try war crimes.

“There is no bail for the charges made. The police can investigate even without a complaint,” he noted.

Referring to the Office of Missing Persons (OMP) Act introduced last August, he said the proposed law had to be read together with this to identify further dangers.

“The OMP law gives the Office of Missing Persons the authority to initiate an inquiry or investigation pursuant to any complaint made to it. Then, there is a strong provision with regard to secrecy. It cannot disclose information regarding the source of complaint. Identity of the complainant is protected. He is a nameless, faceless entity. That is the basis on which investigation starts. At the end of that investigation, the OMP can refer that information to the prosecuting authority.

“If the person supposed missing, is found in a foreign country, his whereabouts cannot be disclosed without his consent. The OMP law gives power to employ foreign personnel called specified officials. These specified officers are given the power of a police officer. They can enter into a military installation. This law gives unrestricted power of delegation,” he said.

The OMP also has wide powers to summon any person, and failure to adhere to it will amount to a punishment equivalent to the contempt of court.

If the person supposed missing, is found in a foreign country, his whereabouts cannot be disclosed without his consent. The OMP law gives power to employ foreign personnel called specified officials