Emblematic Cases Expose the Long Road to Justice in Sri Lanka

(Editor’s Note: This is the latest in a series on the spotlight to be placed on allegations of war crimes and other abuses in Sri Lanka during the next session of the United Nations Human Rights Council, Feb. 22 to March 23. The series includes voices from former U.N. officials, international NGOs, human rights litigators, and researchers. Find links to the full series, as installments are published, at the end of the first article, Spotlight on Sri Lanka as UN Human Rights Council Prepares Next Session.) 

The recent months of authoritarian consolidation in Sri Lanka have reinforced the deterioration of the last few years in human rights, justice, and the prospects for reconciliation over the atrocities committed during the country’s civil war. A constitutional amendment enacted in October 2020 consolidated the executive presidency, weakened independent institutions, and removed checks and balances.

In a matter of months, these changes have resulted in an all-powerful authoritarian president, who makes direct appointments to key institutions such as the Supreme Court, the Court of Appeal, the Attorney General, and independent commissions. As a result, most institutions are staffed by individuals unlikely to act as a check on executive overreach.

This is the same president, Gotabaya Rajapaksa, who in March 2020 granted a presidential pardon to a murderer who had been convicted for a notorious massacre of civilians, including children, in 2000 in Mirusuvil, in Jaffna District. The conviction had been upheld by the country’s Supreme Court in 2019, a rare case in postwar Sri Lanka of a member of the military -– he was an Army staff sergeant -– being held accountable for an atrocity. Other emblematic cases have experienced similar setbacks, including acquittals and charges being dropped.

The increasing repressiveness and recalcitrance of the Sri Lankan government are outlined in a hard-hitting report from the Office of the High Commissioner for Human Rights (OHCHR) that will be discussed at the current United Nations Human Rights Council’s session in Geneva. These disturbing trends give lie to claims that the Sri Lankan government might handle these issues directly and responsibly.

The report from High Commissioner Michelle Bachelet highlights the dangerous realities faced by government critics, human rights defenders, lawyers, and minorities in Sri Lanka. It also speaks to the backsliding of justice in Sri Lanka, where delays and political interference have resulted in a significant number of cases with little prospect of achieving genuine accountability.

The government of President Gotabaya Rajapaksa already previously stated that it will withdraw from the existing U.N.-backed accountability process that had commenced in 2015. And now, the government has rejected the core findings of the high commissioner’s latest report.

The findings include unprecedented levels of militarization, with serving and former military officials holding key positions (including senior administrative positions) in a range of areas including foreign policy, health, agriculture, ports, and customs. The pandemic response also became highly militarized. Health experts and other professionals were sidelined and Army Commander Shavendra Silva, whom the United States sanctioned last year for “his involvement, through command responsibility, in gross violations of human rights, namely extrajudicial killings,” became head of the National Operation Center for Prevention of COVID-19 Outbreak and the one who most often communicated information to the public about the coronavirus. With the military and security services in control of sensitive tasks such as contact tracing and distribution of services, questions quickly arose over the legal scope and proportionality of the pandemic response.

The U.N. high commissioner also outlined how the government has targeted investigators, prosecutors, and others who worked on key cases involving rights violations and corruption, with several such figures being arrested, demoted from their positions, and harassed, and some have fled the country for safety. The latest attempt at avoiding accountability is the establishment of a Special Presidential Commission of Inquiry in January to probe several incidents, which may instead result in more unfounded allegations that alleged perpetrators are victims of politically motivated prosecutions. These moves send a message to anyone of the very real and dangerous consequences if they dare expose the misdeeds of powerful elites.

Successive governments have sought to avoid accountability by appointing one “Commission of Inquiry” after another, ostensibly to investigate, but really to simply stall any concrete action. My organization, the Centre for Policy Alternatives (CPA) in the Sri Lankan capital Colombo, tracked such commissions over a five-year period ending in 2013, and found that many such commissions take months, sometimes years, to complete their mandates, with limited to no information as to what happens after the report is given to the president. The commission Rajapaksa established last month has a mandate of reviewing work done by previous inquiries. But that mandate and those appointed to head it do not inspire confidence of any motivation other than to deflect from the very real rights violations on the ground and to further entrench impunity in Sri Lanka.

Emblematic Cases in Sri Lanka

In a recent study on emblematic cases in Sri Lanka, my colleagues and I at CPA examined legal proceedings going back decades and the status of investigations, prosecutions, and any result of such processes. These cases were chosen based on a range of issues, including the profile of the victims and alleged perpetrators, geographic basis, and status of official processes.

All the cases experienced numerous setbacks. This includes delays, challenges for victim and witness protection, tampering with evidence, and political interference. In several cases, alleged conflicts of interest and interference impeded investigations. In the majority of cases, victims and their families have been waiting for justice for more than a decade, and progress was excruciatingly slow at the investigative and prosecutorial stages. The few cases that concluded with a verdict only confirm that justice continues to elude the victims – in every case, the accused was either acquitted and charges dropped despite evidence of culpability or was even pardoned post-conviction.

While the research covered many more incidents, the report captures with extensive detail the origin and status of 10 specific cases related to violations during and in the early years after the war, which ended in 2009. Below is a brief description of each:

1. Murder of Joseph Pararajasingham, 2005: This incident took place on Christmas Day at a religious place of worship. Investigations were lengthy and often delayed. After more than 15 years, the accused was acquitted in 2021, when the attorney general decided to discontinue the prosecution, following a ruling from the Court of Appeal that the confessions made by two suspects against the accused were inadmissible as evidence.

2. ‘The Trinco Five’: Murder of Five Tamil Students in Trincomalee, 2006: This execution-style killing on Jan. 2, 2006, took place in Trincomalee town. After a prolonged investigation and prosecution, all 13 accused were acquitted on grounds of lack of evidence despite reports to the contrary. This case also occasioned new levels of threats against families of the victims, with several having to leave Sri Lanka. A local journalist who reported on the murder of the five students and exposed evidence of the killings was subsequently shot dead by unknown gunmen.

3. Killing of Workers for Action Against Hunger, 2006: The killing of 17 aid workers who were based in Muttur, Trincomalee, received international attention, and the government appointed a Commission of Inquiry to investigate it and a few other cases. After several years, the attorney general reportedly ordered police to speed up their investigation, but no further information on the progress of investigations has been made publicly available.

4. Abduction of Keith Noyahr, 2008: One of a long list of incidents in which media personnel were attacked in the course of carrying out their professional duties. Noyahr was the editor in a local newspaper who was abducted and subsequently released. There have been lengthy delays with the investigations despite initial breakthroughs and arrests.

5. The Missing Eleven: The Abduction of 11 Youth between August 2008 and March 2009: Indictments against the accused, Sri Lankan Navy officers – one even a fleet admiral — were served in January 2020 after more than a decade of investigations. But delays continue, as defendants have failed to appear in court, challenged orders for their arrest, or waged other court proceedings. Now, the investigators and others involved in pursuing justice in this case have been targeted by the government for reprisal, including demotion, transfer, and even arrest.

6. Murder of Lasantha Wickramatunge, 2009: The assassination of a respected journalist in broad daylight speaks to the impunity enjoyed by perpetrators in Sri Lanka. Investigations have dragged on, generating fear that the work would remain undone. His family recently filed a complaint against the Sri Lankan government with the U.N. Human Rights Committee, a panel of independent experts.

7. Disappearance of Prageeth Eknaligoda, 2010: January 2021 marked 11 years since the disappearance of cartoonist Prageeth Eknaligoda. In 2020 the case was examined by a Commission of Inquiry, which delayed and undermined judicial proceedings.

8. Murder of Wasim Thajudeen, 2012: After initial attempts to pass off the death of rugby player Wasim Thajudeen as an accident, those involved in the cover-up were finally charged in 2019. Recent attempts to portray the suspects as targets of “political victimization” raise concerns that this case, too, will languish.

9. Welikada Prison Incident, 2012: Twenty-seven prisoners were killed and 43 injured during what later became clear was a coordinated operation. This case, too, has been undermined by extensive intimidation of victims and witnesses.

10. Rathupaswala Shooting, 2013: This incident involved the shooting of peaceful, unarmed civilians protesting against the pollution of drinking water. Three were killed and more than 30 injured. After delays in investigations, indictments were filed in 2019. But this case, too, has been marred by the intimidation of witnesses. 

Time for Action

Accountability is a deeply divisive concept in Sri Lanka. Over the years, many have argued, essentially, for prioritizing what they say would be peace over a potentially controversial pursuit of justice. They say too robust a case for accountability will derail fragile processes aimed at achieving a political solution and sustainable peace. An argument has also been made for a “restorative” model of justice as opposed to retributive justice, or that accountability processes could be financially too costly.

But one clear lesson from Sri Lanka’s failed attempts at justice in the past is that de-emphasizing accountability will merely entrench impunity, provide a platform for alleged perpetrators, and legitimize their role. Unfortunately, as seen in Sri Lanka and elsewhere, impunity will further marginalize certain communities, reduce trust in any future domestic political or justice process, and set back any hopes for sustainable peace.

It is incumbent on U.N. member States to examine Sri Lanka’s legacy of abuses and failed domestic initiatives, and explore options that can secure accountability and reconciliation. U.N. members that are not on the Human Rights Council, such as the United States, nevertheless can play an important role. The recommendations provided by the OHCHR report are a good starting point. Failure to act now will only further entrench impunity and fast track the democratic backsliding in Sri Lanka.

IMAGE: Families of victims and rights activists demonstrate outside Sri Lanka’s main prison, demanding justice for the 27 inmates shot dead by security forces in 2012, in Colombo on September 12, 2017. (Photo by ISHARA S. KODIKARA/AFP via Getty Images)

 

About the Author(s)

Bhavani Fonseka

Bhavani Fonseka (@bfonseka) is a Senior Researcher and Attorney at Law with the Centre for Policy Alternatives.