Urgent Legal Reforms Needed to Deal with Unidentified Bodies
Photo courtesy of Hiru News
Over the last two months, six unidentified bodies have washed up on the shores of the Western Province creating fear and suspicion of a new trend of targeted violence. The lack of information from the relevant authorities on the status of investigations regarding the cause of death or the identity of the victims has intensified public speculation, especially since this has taken place against the backdrop of a spate of killings and a crackdown on the Aragalaya.
This pattern of unidentified bodies turning up on beaches has triggered fears stemming from Sri Lanka’s brutal and bloody past. Particularly during the bheeshanaya and the civil war, countless bodies, some mutilated or burned, appeared in prominent places across the country as part of the strategy of the state and armed groups to terrorize the civilian population into submission. From at least the 1990s a series of commissions of inquiry addressed themselves to the question of how to respond to this phenomena of unidentified bodies. Hence, it is not untoward to expect that the state would have developed systematic measures both in terms of prevention and in response to a recurrence.
It is incumbent on the government to urgently take up this issue, and there several steps that can be taken, including to provide up to date information to the and to ensure coordination between the investigating authorities. It is also important that the investigating authorities prove their credibility and ability to carry out independent investigations. While there is a possibility that these may be isolated incidents and the cause of death may not be the result of violence by a third party, as opposed to an organized campaign of targeted killings, that analysis can only be made through the thorough investigation of each incident.
There are, however, longer term obstacles to the formal identification of unidentified bodies that need to be addressed without relying on ad hoc temporary measures to assuage passing political and public interest. This article identifies some of these challenges below but focuses on the draft inquest law as an urgent and integral step to strengthening human identification systems. It will highlight the need for such a draft law both with regards to scenarios ranging from mass disasters and more normal circumstances and could also be a key tool in the search for the victims of enforced disappearances.
Dignity of the dead and human identification
Sri Lanka has a system in place for carrying out inquests when a person has died in suspicious circumstances but the current approach has multiple gaps. For instance, let us take the example of the discovery of a body of a senior citizen in tattered clothing in a provincial town. This person has not been identified by a next of kin or friends within the prescribed time, so his body remains unclaimed at the morgue. In a fortnight the body is handed over to authorities for burial, in the part of the cemetery colloquially referred to as a pauper’s grave. This may be done without any documentation of the corpse that could be used for later identification such as photography, recording of the type of clothes and a nail sample for DNA. Currently there is no central repository for such data.
In parallel to this discovery and burial, in a different part of the country a family is looking for their grandfather suffering from dementia who was last seen at a bus stop. The family has filed a complaint and provided photographs of their missing relative and details of what they were last wearing. As the system currently exists, making this match would be extremely unlikely unless you had dedicated police officers working in collaboration with other state actors such as Judicial Medical Officers (JMO).
Although simplistic, this example illustrates some of the costs of not reforming the existing system. Firstly, the trauma caused to families and next of kin who may face specific forms of emotional distress as they are unable to come to terms with the loss due to the lack of concrete information about the fate of their loved one. Secondly, the failure of the state to uphold the dignity of the dead and to ensure equal treatment for all its citizens. Thirdly, the failure to resolve the case further erodes public confidence in a justice and investigative system that is already facing a massive backlog of missing persons. The OMP for instance had a list of at least 19,013 cases of disappearances as of November 2020, which covers only restricted contexts pertaining to large scale violence and enforced disappearances.
This example also sheds light into some of the missing components of the current system. If the authorities, had a centralized database of unidentified bodies and missing persons that could be accessible to key investigating authorities, such as the police and JMOs, there would be a higher probability of positive identification. Individual agencies have their own lists and records but there is a need for a master database to allow for easier access and coordination.
In addition, there are capacity issues. For instance, the discovery of bones, as opposed to a human body with soft tissue intact, poses a specific challenge. In Sri Lanka the JMOs are forensic pathologists who are specialized in dealing with autopsies of bodies with soft tissue but are also responsible for examining victims of violence, such as those who have been subjected to torture or gender based violence. The dearth of local forensic anthropologist, forensic archaeologists and other specialized forensic scientists is a serious hurdle when dealing with mass grave investigations.
A legacy to contend with
As a country we have to confront a troubling legacy where the state has repeatedly proved itself unable to respond to the overwhelming challenge of identification of victims. A spate of unidentified bodies is by no means a new phenomenon. The country has witnessed both natural and man made disasters that resulted in mass fatalities with unidentified bodies. The tsunami of December 26, 2004 resulted in over 30,000 deaths. Faced with the sheer volume of dead bodies local authorities took the decision to bury victims en masse and had to create ad hoc procedures to legally record the deaths. For the most part, the burials took place without documenting the details of individual victims. Photographs of physical features, clothes and associated items such as jewelry and the collection of DNA samples from each corpse could have been used subsequently for identification. In large scale disasters the next of kin in particular play an important role in identification to provide both information regarding the physical features of their missing relative and DNA samples for comparison.
Sri Lanka lacks a specific law to deal with unidentified bodies so it is dealt with under provisions of the general law. This envisages scenarios with individual victims. The law has not been systematically updated to deal with the mass disasters witnessed during the post-independence era. The large scale conflicts of the two JVP insurrections and the civil war resulted in widespread killings and disappearances where we only have guesstimates for the humanitarian tragedies that ensued. The introduction of specific provisions in the Emergency Regulations during particular periods, such as the authority given to police and armed forces to dispose of bodies without public notification was disastrous and intensified the culture of impunity.
This horrific legacy continues to cast a long shadow as the state has still largely failed in providing answers to the many thousands of affected families still searching for their missing loved ones. This in turn has undermined public confidence in the state’s ability and commitment to provide justice. Investigations of individual mass graves, such as the one at Sooriyakanda, have resulted in excavations but in most cases has not led to the identification of the majority of victims. The limitations in forensic capacity along with political will and inter agency cooperation have been significant obstacles to the investigation and identification process.
In looking at the issue of unidentified bodies it is important to note, however, that it is not unique to mass disasters and conflicts. For instance, according to the Colombo Judicial Medical Officer 300 unidentified bodies were buried in Colombo alone between 2013 to 2018. Thus, this phenomena of unidentified bodies is also a challenge to the management of the dead in more normal circumstances.
Legal reform towards system change
In modern societies, it is the responsibility of the state to oversee the management of the dead and ensure that their dignity and rights are upheld. While there are a number of important technical measures to be taken to reform the approach to dealing with unidentified human remains, such as the provision of specialized training, the existing challenge of human identification requires a system change. In its 2018 Interim Report, the Office on Missing Persons recommended, “in order to guarantee proper identification of human remains, expedite ongoing reforms to the legal framework pertaining to inquests into deaths and related protocols, and ensure a multidisciplinary coordination system between institutions responsible for search, recovery and identification.”
In looking at the approach to dealing with unidentified bodies there is a cross cutting issue that impacts not just identification in relation to large scale disasters and mass graves, but also more normal circumstances. This relates to the limitations in the legal framework and the processes around human identification in order to better improve the likelihood of positive matches. There has been no systematic legal reform to keep up with developments in law elsewhere nor to respond to the specifics of mass disasters.
In setting out on a legal reform process one needs to go beyond a purely legalistic exercise to one grounded in the real world. Conversations with Scene of Crime Officers and JMOs on investigations into cases of unidentified human remains highlighted a lack of communication between key investigation agencies and an absence of clear procedures. One such operational challenge cited was that these critical actors were not always able to observe the body in situ and as soon as possible after discovery. Codifying good practice better assures consistency and accuracy across all cases, rather than leaving it to the discretion of individual Officers in Charge, Inquirers, Magistrates or JMOs.
For such a change to be meaningful legal frameworks need to be envisioned as a means to both respond to problems and loopholes in the practice of existing law and to create an enabling environment. A new law on inquests could prove critical for the development of related Standard Operating Procedures (SOPs) and rules. This reform in turn could catalyse efforts towards cross agency collaboration between actors such as the Police, SOCO and JMOs and draw attention to specific gaps in capacity to be strengthened, including in forensic anthropology and related sciences.
In this regard the process for drawing up the draft Law on Inquests into Death offers a crucial stepping stone. Although the process could be critiqued for its limitations in consultations with victims’ groups and those working with them, it was widely consultative to include diverse groups, including legal, judicial, forensic pathologists and medical practitioners as well as representative from funeral societies. The draft law was drawn up by a committee appointed in 2014 co-chaired by Professor Ravindra Fernando and Yasantha Kodagoda and presented to then Justice Minister Thalatha Athukorala in 2019 but was not presented to cabinet.
The draft Law on Inquests into Death addresses some key gaps and loopholes in existing laws and processes. In particular, it fleshes out procedures required to ensure greater uniformity and specifies the relevant duties and obligations of state actors. For instance, the law sets out a series of measures to be taken by the magistrate, including to adopt of a multidisciplinary approach. As such different experts are called on to provide analyses and these are integrated into a single report to conclude the identification process. By setting out four categories of inquests, the draft law also addresses a broad range of scenarios ranging from mass fatalities in disasters to cases of individual unidentified bodies where no crime has been committed.
The law identifies a number of SOPs, rules and best practices to be drawn up including how to communicate with families and formats for post mortem reports. The drafting of such SOPs could draw on the different experiences and priorities of the key investigating authorities and stakeholders. The draft law sets out a more comprehensive framework for the management of dead, for example by making postmortems mandatory and ensuring responsibility to identify all victims. There are, however, specific aspects of the draft law that needed to be reviewed and revised including in how the issue of missing persons and bodies, as opposed to unidentified bodies, is addressed.
That the existing law was not reformed for so many decades is a serious failing on the part of the state. Further delays to review and then enact this proposed law will only serve to obstruct ongoing efforts by practitioners to build on good practice and ensure protect the dignity of the dead and the rights of the living.
The writer is a former commissioner of the Office on Missing Persons. An abridged version of this article appeared in the Sunday Times on August 24.
 Namini Wijedasa, ‘Hundreds of unidentified bodies dumped: Chief JMO laments violation of human dignity,” The Sunday Times, November 2018.
 Office on Missing Persons, ‘Interim Report,’ September 2018, Page 16