International Community Should Enforce Universal Jurisdiction Clause Against Sri Lankan Officials
The timing was perfect, the country was in the grip of unimaginable human horror. Scores of people have been infected with coronavirus pandemic across the country. Despite the island-wide locked down the number of victims to COVID 19 is rising in geometric progression. Yet, President Gotabaya has thought it fit to use/misuse his presidential powers to pardon former Staff Sergeant Sunil Rathnayake who was in the death row for the last 5 years.
Gotabaya Rajapaksa came to office as President in 2019, promising to release “war heroes” who had been imprisoned on “false” charges. He has now made good his promise.
In the recent past, there were well-orchestrated campaigns by Sinhala – Buddhist extremist organizations and militant Buddhist Bhikkus demanding Sunil Rathnayake’s release. So his release from prison on March 26, 2020 came as no surprise except for the timing. President Gotabaya has exploited the current rage of CONVID 19 pandemic that has caused widespread panic, misery and uncertainty among the people. It is in effect a stealthy exercise to blunt criticism by human rights organizations and others crying foul.
News reports were doing the rounds for months claiming that murder convict Rathnayake will receive a presidential pardon. He was found guilty by the courts and sentenced to death in 2015 for the murder of eight Tamil civilians by blindfolding, slitting their throats and dumping their bodies into a sewer on 10 November 2000. The 8 victims included a 5-year-old child and two teenagers who have gone to Mirusuvil to inspect their houses with prior permission from the army.
The deceased belonged to four families. A single-family lost four members, another lost two breadwinners. Two more also lost primary breadwinners.
The killings have been dubbed the ‘Mirusuvil massacre.’ Ponnuthurai Maheswaran, who managed to survive and escape from the army. He testified in court and identified at least five of the soldiers responsible.
The Tamil Guardian in January 2020 quoted UNP MP Ajith Perera saying “Now we have got information that the government has taken measures to release 34 members of the intelligence and Sunil Rathnayake, as mentioned during the Gotabaya Rajapaksa election campaign.”
“That is how a leader who does what they say works,” continued Perera. “Therefore, I would like to extend my gratitude to president Gotabaya Rajapakse and Minister of Justice Nimal Siripala De Silva for taking this decision.” (https://www.tamilguardian.com/content/sri-lanka-release-soldier-prison-massacre-tamils)
At the time of the massacre, Rathnayake was a member of the long–range reconnaissance patrol or LRRP attached to the Gajaba Regiment of the Sri Lankan Armed Forces. Both President Gotabaya Rajapaksa and the Defence Secretary Kamal Gunaratne were once members of the Gajaba Regiment. LRRP was well known for their atrocities and the Mirusuvil massacre was a textbook example.
The Centre for Human Rights and Development (CHRD) gave details of the murder case as follows:
It took 15 long years for the Mirusuvil case HC/1092/2002 to come to an end on June 25, 2015. The Colombo High Court found Army Sergeant Sunil Rathnayake guilty and sentenced him to death for killing 8 civilians in Mirusuvil, Jaffna in 2000.
The Court was of the opinion that there was sufficient evidence to prove his guilt. However, four other soldiers in connection to the massacre were acquitted due to insufficient evidence.
The incident occurred on December 19 2000, when 9 civilians including a 5-year-old child in the Jaffna district disappeared from their homes in Mirusuvil in the Thenmaradchy area. Nine men obtained permission from the Sri Lankan Army to visit their homes and see their properties as they were displaced to the Vadamaraatchi area. Later, it was reported that they were missing. On December 24, 2000 one of the missing Maheswaran escaped from army custody with severe wounds and injuries all over his body as a result of torture and gave information and details of the remaining eight. On his evidence, a mass grave was discovered and corpses of the eight men were found during exhumation which took place on December 25, 2000.
This case was taken up at the Chavakachcheri Magistrate’s Court on the same day and subsequently, 14 army personnel were taken into custody. Later, the case was transferred to the Anuradhapura Magistrate’s Court at the request of the suspects to the Attorney General’s Department as they feared it would be a threat to their lives. Subsequently, it was taken up on July 22, 2002, and November 29, 2002, at the Anuradhapura Magistrate’s Court.
Later the Chief Justice appointed a trial-at-bar at the High Court, Colombo and nominated three judges for trial at bar. They were Justice Sarath Ambepitiya, Justice S.I. Imam and Justice Kumar Ekaratne. The CHRD retained lawyers to hear the case at trial-at-bar. The trial-at-bar commenced on November 27, 2002, at the High Court Colombo. While five were indicted, the rest were released on bail. Attorneys-at-law D. W. Abeykoon PC, K.D.C. Kumarage, K.S. Ratnavel and M. Remedies appeared for the aggrieved parties. The next date for trial was fixed for January 29, 2003.
Trials were held at the High Court, Colombo from January to July 2003. Later a legal issue cropped up whether a confession made to military police is admissible in Court. The judges ordered the defence counsel to approach the Supreme Court on this matter and make a decision. Thereafter the case was postponed till March 16, 2004. The Special Bench of the Supreme Court comprising five judges dismissed petitions of appeal challenging the admissibility of the confession. In the meantime, two judges of the bench were removed and a new bench was constituted which comprised Justice Sarath Ambepitiya, Justice Upali Abeyratne and Justice Sisira de Abrew. The new date for trial to commence was fixed for November 4, 2004.
When trials resumed on November 4, 2004, the case was ordered to be continued from the point it ended during the last date. Later Justice Sarath Ambepitiya ordered the trial to continue from the point it ended on November 22, 2004.
Unfortunately, Justice Sarath Ambepitiya was gunned down by assassins on November 19, 2004. Just before his assassination, he has sentenced a female drug trafficker for life. Justice Sarath Ambepitiya’s bodyguard Police Inspector Upali Bandara was also killed along with him.
Since the Chief Justice had to appoint a new judge, the case was fixed for December 16, 2004. But when the case was taken up on that day a new judge was not appointed and the case was postponed to January 19, 2005. Attorneys K.S.Ratnavel and K.Shanmugalingam were retained by CHRD to appear on behalf of the aggrieved party.
The trial at bar went on in the High Court of Colombo but at the beginning of 2007, the case was stopped temporarily. In September 2008, the new date for the next hearing was informed and on November 11, 2008, the case was taken up before the three judges in the Colombo High Court.
The High Court panel visited the scene of the murder on April 28, 2011. Judges Deepali Wijesundara, W.U.M.P.B. Warawewa and Sunil Rajapaksa inspected the site and the STF and the Air Force provided security to the area during the inspection. The judges also inspected the Chavakachcheri court premises where an identification of the suspect took place.
This came about when the three-member bench of Colombo High Court unanimously, decided personally to visit the site where eight civilians were murdered in Mirusuvil 11 years back. When the case was taken up on February 15, 2011, the three-member bench led by Judge Ms Deepali Wijesundara decided to visit the crime scene with the consent of the petitioner and the defendant. Thereafter, on March 10, 2011, Deputy Solicitor General Sarath Jayamane stated that an officer must be appointed by the Colombo High Court in order to make contacts.
He further added the report on the Mirusuvil massacre has been submitted and out of the three places mentioned in the report two have been changed and therefore Court must order to appoint two competent officers from the Ministry of Defense and Ministry of justice as there might be land mines in these areas in order to continue the journey. He requested the bench that this must be announced at the next hearing.
On 27th July 2011, the trial at bar at the Colombo High Court, the Asst. Examiner D.H.L. Jayamanna stated that it has been proved that the clothes found at the massacre site were that of the victims, according to the evidence produced by the Government Medical Examination Department. This was confirmed with the support of relatives the victims Kathiresh Gnanavimalan, and Gnanavimalan Ravichandran. (https://srilankachrd.org/la-mirusuvil.php)
The Court after trial sentenced the accused Rathnayake to death by hanging and further imposed a fine of Rs.51, 000 on the accused and in default observed that he would be liable to a seven-month-imprisonment on default of the fine.
Four other accused Second Lieutenant R.W. Senaka Munasinghe, T.M. Jayaratne, S.A. Pushpa Saman Kumara and Gamini Munasinghe were not found guilty and thereby acquitted and released from the case.
When the judges asked the accused whether he was guilty or not guilty to each charge, the first accused told the open Court that he was not pleading guilty to the charges.
In this case, R.M. Sunil Ratnayake, Second Lieutenant R.W. Senaka Munasinghe, T.M. Jayaratne, S.A. Pushpa Saman Kumara and Gamini Munasinghe were accused on 17 counts including unlawful assembly with common intention to cause injury and murder of eight persons on December 19, 2000 at Mirusuvil and committing the murder of eight Tamil villagers.
The Attorney General indicted five accused on 17 charges in the murder of Gnanapalan Raviveeran, Sellamuttu Theivakulasingham, Vilvarajah Pratheepan, Sinniah Vilvarajah, Nadesu Jeyachandran, Kathiran Gnanachandran, Gnanachandran Santhan and Vilvarajah Prasath in Mirusuvil of the Jaffna peninsula before a High Court at Trial-at-Bar.
“Finally, after a long process, justice is delivered. This also shows that we definitely have the capacity to conduct a credible investigation,” prosecutor and Additional Solicitor General Sarath Jayamanna told Reuters.
Many other cases failed, including the Kumarapuram massacre, the Visvamadu gang rape case, the Trincomalee students’ massacre and many others where there was no prosecution even. Mirusuvil was a rare exception to this series of acquittals and even then Rathnayake trial took 13 years to conclude.
Despite President Gotabaya’s attempt to use/misuse his presidential powers to release a convicted murderer, Human Rights groups and civil societies lost no time to express their anger and anguish in the strongest possible terms.
At the time of the 2015 conviction, Together Against Genocide (TAG) released a statement welcoming the sentencing, but added “much more” needed to be done to end impunity on the island. “Even though the war has ended, the racial hatred is far from resolved,” TAG said.
“The open support for the convicted soldier as a ‘War Hero’ clearly shows that racial tensions are still extremely high. This racial hatred prevents justice for the Tamil victims of this and other massacres. There is a clear reluctance among the majority ethnic Sinhala population to hold SLA forces responsible for their war crimes.” (https://www.tamilguardian.com/content/sri-lanka-release-soldier-prison-massacre-Tamils)
Rathnayake who brutally butchered 8 innocent Tamils was no ‘War Hero’ by any means. If at all, it was a shameful act of an ignorant coward.
One of the first to express displeasure was UN High Commissioner for Human Rights. “We are troubled by reports that the convicted perpetrator of the Mirusuvil massacre, in Sri Lanka, has received a Presidential Pardon and was released from jail this week” the Spokesperson for the UN High Commissioner for Human Rights, Rupert Colville said.
“Former Army sergeant Sunil Rathnayake was sentenced in 2015 for the murder in 2000 of eight civilians, including a five-year-old child, after more than a decade long trial. Five defendants were brought to trial but only Sgt Rathnayake was convicted. The conviction was confirmed by the Supreme Court of Sri Lanka in May 2019. This was one of the rare human rights cases from the decades-long conflict that had ever reached conviction.
The Presidential pardon is an affront to victims and yet another example of the failure of Sri Lanka to fulfil its international human rights obligations to provide meaningful accountability for war crimes, crimes against humanity and other gross violations of human rights. Victims of such violations and crimes have the right to a remedy. This includes equal and effective access to justice and reparation, and that perpetrators serve a punishment that is proportionate to the seriousness of their conduct.
Pardoning one of the sole convicted perpetrators of atrocities committed during the Sri Lankan conflict further undermines the limited progress the country has made towards ending impunity for mass human rights abuse” said the release.
Twenty-two movements working on issues relating to civic rights, human rights, women’s rights, and a journalist-activist organisation have jointly issued a statement expressing their concern over the release of army personnel convicted for the mass murder of Tamil civilians at Mirusuvil in Jaffna on December 24, 2000. He was released on a Presidential pardon. The statement continued:
“It is a matter of regret and national tragedy that neither the state nor government authorities have over the years offered reparations or compensations to the families of the dead who have been deprived of their breadwinners and are condemned to live in poverty for the rest of their lives.”
Amnesty International (AI) in a hard-hitting statement condemned the Presidential pardon to Army sergeant Sunil Rathnayake. Responding to Presidential pardon, AI’s Regional Director for South Asia, Biraj Patnaik, said the government’s arbitrary decision to release Sergeant Rathnayaka sends an extremely worrying message.
“Where accountability is so rare for serious human rights violations in Sri Lanka, the government’s arbitrary decision to release Sergeant Rathnayake sends an extremely worrying message. It means that military perpetrators of horrific crimes, even if convicted through a court of law, will be pardoned and released,” he said.
“Using the pandemic as an opportunity to release those convicted for heinous crimes is reprehensible. Victims have a right to justice, and Sri Lanka has an obligation to ensure that justice is done. After many long years, the victims of the Mirusuvil massacre from 2000 finally got a semblance of justice in 2015. It is despicable to have that justice reversed through an arbitrary Executive decision,” said Biraj Patnai. (https://www.amnesty.org/en/latest/news/2020/03/justice-reversed-for-victims-of-the-mirusuvil-massacre-from-sri-lanka/)
The government, of course, is paying scant attention to the criticism by various organizations. What is at stake is the credibility of the judicial process and justice to the victims. Compared to several cases of mass murders by the security forces. like the killing 17 aid workers at Mutur on 04 August 2006 (https://en.wikipedia.org/wiki/List_of_massacres_in_Sri_Lanka) the Mirusuvil murder case was a rare exception to the usual lack of accountability for human rights violations committed during the conflict. It is the only one that was successfully concluded and the murderer sentenced to death.
The International Court of Justice (ICJ) the principal judicial organ of the United Nations (UN) has also criticised the Presidential pardon that cast serious doubt upon the Government’s commitment to accountability and the rule of law in Sri Lanka.
It appears that Sri Lanka has set itself on a collision course with several Human Rights Organizations and the UNHRC itself.
Impunity from justice has been the curse of Sri Lanka right from 1956 when peaceful Satyagrahis were assaulted and some thrown into Beira lake. Not only attackers in 1956, but the killers, looters and arsonists in 1958, 1977, 1949, 1981 and 1983 pogroms were never charged in courts. It is time the international community to stop issuing a statement which the rulers of Sri Lanka have nothing but contempt. Sri Lanka political culture has perpetuated complete impunity for war crimes. The pardoning the convicted murderer President Gotabaya has dealt a blow to the courts and the judicial system itself.
Presidential pardon to murder convict Sunil Rathnayake shows Sri Lanka has almost repudiated Resolutions (30/1, 40/1) passed by the UNHRC on Promoting reconciliation, accountability and human rights in Sri Lanka.
Therefore, the international community should now invoke and enforce at least the Universal Jurisdiction Clause against Sri Lankan officials visiting foreign countries.
Arbitrary Release Of A Convicted Military Officer Calls For A Rethink On International Strategies On Sri Lanka: GTF
In 2015, after a 13-year trial, the Colombo High Court found Sergeant Ratnayake guilty of the multiple murders committed in Mirusuvil in the North of Sri Lanka and sentenced him to death. The conviction and the sentence were unanimously affirmed by a five-judge bench of the Supreme Court in May 2019.
One of the rarest of rare cases, this was often touted as an instance of accountability in a country that took no genuine step to address entrenched impunity and wartime atrocities committed during the three-decades-long war.
UN High Commissioner for Human Rights has strongly condemned the presidential pardon, calling it an affront to victims and yet another example of the failure of Sri Lanka to fulfil its international human rights obligations to provide meaningful accountability for war crimes, crimes against humanity and other gross violations of human rights.
US Congressman Eliot Engel, the Chairman of the House Foreign Affairs Committee, tweeted that he was ‘troubled by Sri Lankan President pardoning soldier convicted of murdering civilians, including a 5-year-old girl, during the country’s civil war’ and adding that ‘this action calls into question Sri Lanka’s commitment to post-war accountability and reconciliation.’
Amnesty International has condemned Sri Lanka’s actions stating that using the pandemic as an opportunity to release those convicted for heinous crimes is reprehensible and that it was despicable to have that semblance of justice reversed through an arbitrary executive decision.
This arbitrary action by the Sri Lankan government sends a deeply disturbing message – military perpetrators of horrific crimes, even in a rare chance of convicted in a court of law, will be pardoned and released.
Sri Lanka may have opportunistically timed its action to coincide with the pandemic gripping the world. But, the trajectory of the Sri Lankan government and the direction it is heading – withdrawal from the sponsorship of the UNHRC resolution, the militarisation of the senior administrators of the government and now this blatant reversal of justice delivered in a court of law – leaves no room for ambiguity.
The Sri Lankan state and its institutions will never exercise accountability for war-time atrocities and will always find a way to let the offenders go free.
For all countries that consider human rights and adherence to international law as a cornerstone for a decent and civilised world and as a basis for international relations, it is time to end the diplomatic charade that Sri Lanka on its own will deliver on accountability and reconciliation and to seriously explore alternate strategies and options invoking universal jurisdiction by States and creating an international impartial accountability mechanism to help Sri Lanka deal with its unfortunate past. (GTF)
International Community Should Enforce Universal Jurisdiction Clause Against Sri Lankan Officials
A veritable caterwaul of protest has erupted from local and international NGO quarters over the presidential pardon extended to a former soldier Sunil Ratnayake, who had been convicted and sentenced to death over an incident, in 2000, when eight Tamil persons including a five-year-old child were killed in Mirusuvil in Jaffna. The Office of the UN High Commissioner for Human Rights said, in a statement, that the release of this individual was an affront to the victims who lost their lives in that incident. An Al Jazeera report on this matter explained that Sunil Ratnayake had been sentenced to death for ‘slitting the throats’ of Tamil civilians including four children. Amnesty International, Human Rights Watch, The Sri Lanka Human Rights Commission, and the International Commission of Jurists have also condemned the release of this convict. Furthermore, 22 foreign funded NGOs in Sri Lanka have issued a statement saying, among other things, that the President has given his blessing to a ‘cold-blooded killer’.
Many of those who have condemned the release of this convict have also pointed out that his conviction by a High Court Trial-at-Bar was unanimously upheld by a five-member bench of the Supreme Court. The statements issued in relation to this presidential pardon would lead one to think that it has been proven in court that the convict in question personally killed or participated in the killing of the eight victims. That is what one normally expects when talking about a murder conviction. The judgment, however, does not state anywhere that there was any evidence to show that Ratnayake personally killed any of the victims. The facts of this case which emerge from the Supreme Court judgment are as follows:
In April 2000 the LTTE overran Elephant Pass and the army had to reposition its defence lines. Due to shells falling in the vicinity, the villagers of Mirusuvil had to abandon their homes and seek refuge elsewhere.
However, they visited their abandoned properties, once in a while, to clean the places and to collect whatever produce that they could make use of. On the 18th December 2000, an army unit was deployed in the Mirusuvil area. On the 19th December, 2000, a group of villagers – Raviwarman, Thaivakulasingham, Wilvarasa Pradeepan, Wilvarasa Sinniah, Nadesu Jayachandran, K. Gnanachandran, G. Shanthan, Wilvarasa Prasad and Maheshwaran came Mirusuvil to visit their respective houses. By 4.00 in the afternoon, they were getting ready to go back when they were stopped and questioned by some soldiers. Raviwarman, who had lost his left arm in a shell explosion when he was a child, could speak some Sinhala and explained the reason for their presence in the area. The soldiers then assaulted the villagers who were with him. Maheshwaran stated that he had been blindfolded with his sarong and assaulted and he had lost consciousness. After a while, however, he regained his senses. At that point, two military men carried him and tossed him over a fence. In the process his blindfold had got entangled with the barbed wire of the fence.
He was then taken to a location where there was a cesspit. According to Maheshwaran he noticed patches of blood on the cesspit slab and also sensed some movements emanating from inside the cesspit. Fearing that the others who came with him had been harmed and that he too would face the same fate, he pushed the two soldiers who approached to blindfold him again and ran for his life through the thicket, clad only in his underwear. He spent the night at a house of one of his aunts, about a quarter of a mile away. The following morning, on his way home, he met his father who had come out looking for him and both of them returned to their temporary residence at Karaweddi. They then complained about the incident to the EPDP office in the area. Maheshwaran was subsequently admitted to hospital.
On the 22nd December he left the hospital and returned home. The following day he was visited by military personnel who had questioned him about the incident. On the same day Maheshwaran accompanied by his parents, members of the EPDP, the Gramasevaka of the area along with the Military Police officers, visited the location of the cesspit. What they found inside the pit were parts of the carcass of a goat and a reptile.
Five arrested over the incident
Major Sydney de Soyza was in charge of the military police in the Jaffna region, and he, too, had been with the group visiting scene of the incident. On making inquiries he had come to know that about 20 soldiers of an Army Special Operations Unit were occupying a building in the vicinity. The Chief Officer of that Unit Sergeant Ranasinghe, accompanied by several other soldiers, had approached the location of the cesspit and witness Maheshwaran had suddenly shouted saying that two of the soldiers who came with Sergeant Ranasinghe were the soldiers who had restrained and assaulted him. The soldiers identified by Maheshwaran were Lance Corporal Sunil Rathnayake and Private Mahinda Kumarasinghe. The two army men had become restless and had shown signs of fear. Major de Soyza had then directed Major Premalal to question the two soldiers. The duo had been very restless, so much so that Major Premalal had to tell them that there was no reason for them to be so disturbed. Major Soyza had thereupon placed under arrest five soldiers inclusive of Lance Corporal Ratnayake and Private Kumarasinghe.
Based on a statement made by Lance Corporal Ratnayake, Major Sydney de Soyza along with a team of Military Police officers, visited the area again and Lance Corporal Rathnayake pointed out a location which had loose soil covered with small branches. Then steps had been taken to inform the Police. The police arrived at the scene headed by the SSP Kankesanthurai followed by the Magistrate who ordered the police to dig the area. The bodies of the eight victims were recovered. Steps were taken to have identification parades held where a number of military personnel suspected of committing the crime, were produced (13 in all). Five of them were identified by Maheshwaran.
The Attorney General indicted the five persons, so identified on 19 Counts. Count 1 was committing an offence punishable under Section 140 of the Penal Code as a member of an unlawful assembly with the common object of causing intimidation to Raviwarman. Counts 2, 3, 4, 5, 6, 7, 8 and 9 were committing the murders of Raviwarman, Thaivakulasingham, Wilvarasa Pradeepan, Wilvarasa Sinniah, Nadesu Jayachandran, K. Gnanachandran, G. Shanthan and Wilvarasa Prasad, an offence punishable under Section 296 of the Penal Code read with section 146 of the Penal Code. Section 296 of the Penal Code states that whoever commits murder shall be punished with death. Section 140 states that members of an unlawful assembly shall be punished with imprisonment of either description for a term which may extend to six months, or with a fine, or with both and Section 146 of the Penal Code states that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, every person who, at the time of the committing of that offence, is a member of the same assembly is guilty of that offence.
Count 10 was causing hurt to Maheshwaran, an offence punishable under Section 314 of the Penal Code read with Section 146 of the Penal Code. Section 314 of the Penal Code states that whoever voluntarily causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Counts11 to 18 are again counts of murder in respect of the persons referred to in Counts 2 to 9, however the basis of liability under the said Counts is Common Intention articulated in Section 32 of the Penal Code and Count 19 again is the corresponding charge of causing hurt, referred to in Count 10, based on Common Intention.
What Section 32 of the Penal Code states is that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The High Court Trial-at-Bar acquitted the 2nd, 3rd, 4th and 5th accused, but convicted the 1st Accused Lance Corporal Sunil Ratnayake on all counts referred to above. On appeal, the Supreme Court unanimously set aside the conviction of Lance Corporal Sunil Ratnayake, on Counts 1 to 10. What remained were Counts 11 to 19 which are based on the vicarious liability of common intention under Section 32 of the Penal Code. The SC also made the following observations:
· The entire prosecution case hinges on Maheshwaran’s testimony.
· This is a case where the court has to decide, mainly on circumstantial evidence.
· The acquittal of the 2nd, 3rd, 4th, and 5th Accused by the High Court Trial-At-Bar was due to the failure on the part of the prosecution to establish the identities of those Accused to the degree of proof required by law.
· However, the spontaneous identification of Lance Corporal Sunil Ratnayake by witness Maheshwaran at the scene of the crime (as recounted above) remains unassailed.