The decision to kill rather than to detain

Conversions on Murder- Part Two

- Link to Previous Part: Part One

"It is this phenomenon of killing political dissidents, and the consideration that holding prisoners would have extremely adverse political consequences to the existing regime, that need to be understood in dealing with the issue of killing of prisoners in Sri Lanka."

By Basil Fernando

(December 23, Hong Kong, Sri Lanka Guardian) In discussing the question of the tolerance towards murder, something which has become so common a feature of Sri Lankan life today, the way the law enforcement agencies were used to engage in committing large-scale disappearances needs to be considered as a significant issue. Law enforcement agencies participating in direct murder after securing the arrest of persons became common practice in Sri Lanka.

Going into the more recent history, in the period from 1986 to around 1991, the official figure of around 30, 000 persons disappeared, and, according to official records, most of these disappearances occurred after law enforcement officers secured the arrest of these persons. Disappearances have continued after that period up until the middle of 2009, particularly in the north and the east, and there are already records of a large number of such disappearances in the files of the Human Rights Commission of Sri Lanka as well as other commissions appointed to inquire into this matter from time to time.
Killing after arrest

What disappearances have come to mean in Sri Lanka are incidents of direct murder. The law enforcement authorities began to consider causing such disappearances legitimate and necessary. How did this come about? It certainly did not come about as a necessary requirement of combat. Once a person’s arrest has been secured, the question of killing a in combat does not arise any further. If the state did want to keep these persons alive and yet to punish any of them for any crime, it was possible for the state to do so, either through special laws such as prevention of terrorism or emergency laws, or through the operation of the normal laws of the country. The state did not choose to use the procedure of detention of these persons after securing arrest, but instead sanctioned a system of extrajudicial execution and disposal of bodies.

The question then is as to why the state would have chosen to follow this path of sanctioning the killing of these persons and disposing of their bodies, rather than following the procedure of securing detention and, if necessary, subjecting them to trials and punishing them thereafter. In this question lies very many questions relating to criminal justice in Sri Lanka.

Prison System

The question as to why the choice to kill rather than detaining persons was made raises questions relating to Sri Lanka’s prison system. Could the state not have kept, for example, these 30,000 persons, who were arrested and who thereafter disappeared in the period from the late ‘80s to the early ‘90s, in detention? One question that would easily come up is as to whether the Sri Lankan prison system is capable of keeping such a large number of prisoners in detention.

Detentions in 1971

The arrests after the 1971 insurrection saw thousands of persons being detained and many being kept in detention camps other than normal prisons. There were persons detained in some places transformed into detention centres, such as some university premises etc. These persons included the JVP suspects who surrendered in the call for amnesty following the insurrection. Such an attempt was not made during the period of the late ‘80s. Instead, the resort was more to direct killings after arrest. There were some detention centres maintained under military control, and many persons also disappeared from these detention centres. The commissions of inquiry that have inquired into these enforced disappearances have provided the details of the killings that happened after persons who had been detained in some of these military detention camps.

Following the 1971 insurrection there was trials, though not in a normal court of law but before a special tribunal. There was no such attempt to have any kind of trial after the suppression of the JVP in the late ‘80s. Almost everyone that needed to be eliminated was eliminated through forced disappearances after arrest.

A Policy Decision to kill

This demonstrates that there was a deliberate policy decision to kill the arrested persons instead of detaining them. Perhaps one issue was the incapacity to keep large numbers of persons in prisons.

Besides any problems with capacity for holding prisoners, there would also have been the political issue of holding large numbers of political prisoners. This would have meant encouraging protest regarding the release of such persons. Demands for release would have come from various political parties and human rights organisations in the country, as well as from the international community. This would have created a political problem for the government to deal with and would have also created many repercussions.

Therefore, the political strategy of killing persons who have been arrested instead of detaining them was clearly a way of avoiding the consequences of keeping political prisoners in detention over a long period. The regime at this time wanted to avoid any kind of political protest against itself. The very development of the JVP in the late 1980s period was a direct result of the government strategy of dealing against any kind of protest movements and an attempt to destroy political movements arising against the government.

By this time, the country’s major leftist movements, such as the Samasamaja party and the communist party, which also had a lot of following in the trade union movements, had been diminished very much due to political reasons after their participation in the 1970 coalition government. The large scale victory won by the United National Party itself had acted to diminish the influence of these parties and so the new regime was able to operate without significant political protest. This has also created problems for Sri Lanka’s main opposition party, the Sri Lanka Freedom Party, by opposition to deprive liberty to its leader Sirimao Bandaranayake and many other forms of attacks on this party. Thus, at this stage, the possibility of development of strong political protest from this party also did not exist.

Killing as a means to diminish protests

It was the JVP which forced the possibility of some kind of protest within the government at this time. The strategy of the wholesale suppression of this movement was directed towards the elimination of the development of political protest against the regime from the JVP. Since this was the purpose of the suppression of the JVP, it would have been self-defeating for the government to hold large numbers political prisoners inside their prisons. If there was such a presence within the country, it would have been quite a natural consequence for a political movement to arise in defence of these persons. This would have been self-defeating to the government strategy. Prevention of the consequences of holding long term political prisoners had also become a strategy that had developed within Sri Lanka by then.

Killing Tamil Detainees

The government in trying to suppress the early Tamil nationalist movement it also engaged in the arrest of many persons. In the early ‘80s there were several major cases before Sri Lankan courts against the Tamil rebels. Holding Tamil rebels in prisons became an issue that was mobilised by the Tamil nationalist movements to campaign for their cause both within Sri Lanka and abroad. Within Sri Lanka, it became an important political issue among the Tamils. This was natural, since the holding of prisoners from any community would naturally create serious concern within that community. The political movement that was galvanised by the holding of Tamil political prisoners suffered a serious setback in July 1983 when a large number of Tamil prisoners were killed inside Welikada prison and several other prisons in the course of alleged riots.

In fact, the killings inside the prisons were well-organised. Again, these killings of Tamil prisoners were a part of a strategy to diminish the political movements that were utilising the presence of political prisoners in the prisons to their advantage both locally and internationally. Once the prisoners themselves had been killed, there was no purpose anymore to protest for their release. Besides, the killing of prisoners inside prisons would also send a chilling message to the other rebels, carrying the message that this is a fate left for them. In future they could not expect to become political prisoners and thereby to remain alive after participation in any of these movements. Thus, in relation to the Tamil prisoners too, the idea of holding persons in prison has been considered by the government as counterproductive and more direct dealing with these prisoners has become a major strategy.

It is this phenomenon of killing political dissidents, and the consideration that holding prisoners would have extremely adverse political consequences to the existing regime, that need to be understood in dealing with the issue of killing of prisoners in Sri Lanka.

From Political killings to killings in civil disputes

It is this pragmatic approach of trying to eliminate certain political opponents by killing and not allowing the consequences of legally holding persons in detention that also paved the way for killings to become a much more common affair in the society at large. Killing is a pragmatic approach to get away from all the legal consequences which are associated with trying to deal with the results of any dispute in a legal manner. If a property dispute is to be dealt with in a legal manner, it may require cases to be filed in court and the cases themselves may take a long time, and such things could have serious consequences to one’s business.

"The government in trying to suppress the early Tamil nationalist movement it also engaged in the arrest of many persons. In the early ‘80s there were several major cases before Sri Lankan courts against the Tamil rebels."

Dealing with other matters, even personal matters such as ones enemies through legal means can be avoided if the easier, more pragmatic method of killing them can be done without facing serious legal consequences. It was the basic message of liberalising killings or allowing easy use of killings and the idea of dispensing with the legal process, which is more cumbersome and can be full of so many consequences. Killing can be used to deal with these disputes without consequences. The law becomes silenced and then the killing becomes a matter of no consequence. It is this overall pragmatic approach to killing that has become so entrenched in Sri Lanka, virtually destroying all guarantees of life that are normally available within a civilised society.

The ease of killing for political reasons has also resulted in easy killings for any purpose at all.

To be continued …