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Excerpts from the UTHR(J) Special Report on Third Anniversary of the ACF Massacre in Sri Lanka

by University Teachers for Human Rights (Jaffna), 5 August 2009

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University Teachers for Human Rights (Jaffna), Sri Lanka

Special Report No: 33

Date of release: 4th August 2009

Third Anniversary of the ACF Massacre

A Travestied Investigation, Erosion of the Rule of Law and Indicators for
the Future of Minorities in Lanka

Summary

0. Introduction: ACF 2006 – 2009: Tracing the Precipitous Erosion of the
Rule of Law

1. A short history of the Commission’s inquiry into the ACF massacre

2. Summary of Findings in Special Report No.30 with Additional Clarifications

3. Main Elements of the Cover-up Strategy

3.1 Flimsy Alibis – Foretaste of a Cover Up

3.2 Commandos and Home Guards

4. The Time when the Police knew of the Killings

5. The Time of the Killings

6. Questions about the Post Mortems and Peter Apps’ Testimony

7. Rev. Sornarajah’s Testimony

8. The Cader Affair

8.1 Cader sets off an Alarm, while Jehangir claims having slept through

8.2 The Demolition of Cader

8.3 The Real Dilemma over Cader: Was he an Eyewitness?

8.4 ‘Hiding a Pumpkin in a Plate of Rice’

9. The Garage Owner: Recasting Awkward Chronologies

10. Other Senior Security Officials – the Hazard of Total Denial

11. A Clarification on the Commandos

12. Police Constables Susantha and Nilantha

13. The Bullet found in Romila, initially identified by Dodd as 5.56 mm.

14. Intimidation of Tamil Witnesses in the name of Investigation

14.1 Mrs. Priya Sritharan

14.2 Mrs. Niranjaladevi Muralitharan

14.3 The Cost of Being Honest With the Dead

14.4 To be Haunted by those who Fear the Dead

14.4.1 A Note on Security for Tamils in Trincomalee

14.5 The Price of Keeping the Children Alive

14.6 Rev. Albert Sornarajah

14.6.1 The Commission Report’s Defamatory Stance on Rev. Sornarajah

14.7 Manivannan, Acting Divisional Secretary Mutur

14.8 R. Shanmugarajah, former Police Constable

14.9 Failure of Witness Protection and the Plight of Witnesses

15. Thompson and Thompson go to Mutur

15.1 Wimalaratne and Jayasekere

16. Getting rid of inconveniences: Interfering with the Composition of the
Commission

17. A Question of Sources: The Real Issues

18 The Cost of a Lawless State and Minorities

18.1 Degradation of the Rule of Law and the end of Constitutional Rule

18.2 Incompatibility of Justice with the Mores of the Regime

Appendix 1 : Two Letters

Appendix 2: The Relevant Police Hierarchy

Summary

Three years ago, on the 4th of August 2006 at around 4.15pm, one Muslim
and 16 Tamil ACF aid workers were forced to their knees, begging for their
lives, and shot execution style at point blank range in their office
compound in Mutur, Sri Lanka.

The victims of this crime were not caught in cross fire, killed accidently
or mistaken for combatants in the midst of an encounter. They were sought
out and murdered. Available evidence points to the responsibility of
police officers and Muslim home guard members who have acted in the
presence of Sri Lankan Army commandos.

In this, or any premeditated crime of this nature, the State has a
responsibility to independently determine the facts of the case and the
identity of the perpetrators. The Government has not only failed to fulfil
this duty, it has obstructed efforts to do so through the Presidential
Commission of Inquiry (CoI).

Currently, turning the scales of justice completely upside-down, the
Government is pointing the finger at the organisation for which the
victims worked, the ACF, and accusing it of negligence. This can only be
an effort to divert attention from its own responsibility, since the ACF’s
actions, although important for the organisation to look into, are utterly
irrelevant to a determination of responsibility for the premeditated
murder of the ACF employees.

In light of the Government’s recent claim that the CoI has found the LTTE
to be fully responsible for this crime and attempts by the CoI to debunk
our findings, we present a thorough review of our earlier reports, with
new evidence gathered and assessed. This effort has affirmed our earlier
findings that the 17 aid workers were killed by at least one member of the
Muslim home guard (Jehangir) and two police constables (Susantha and
Nilantha) in the presence of military commandos

Even before the Commission of Inquiry was constituted, several arms of the
state including the Judicial Service Commission undermined a proper
inquiry, including by replacing the sitting Magistrate (a Tamil, who was
replaced by a Sinhalese) just prior to his announcing the findings of his
inquest. After the CoI was formed, the AG’s office along with the defence
lawyers continued to work as a team to discredit any information which
might point towards the real culprit. The role of AG’s office was
questioned by the IIEGP (International Independent Group of Eminent
Persons, mandated to observe the work of the CoI) but their concern was
discarded.

The report stands by its earlier concerns regarding the cover up of bullet
types used by the assailants and unprofessional nature of the Australian
expert’s decision to retract his earlier identification of a 5.56 mm
bullet.

This report also critically examines the CoI proceedings and actions by
the Government in the context of the CoI’s efforts. In addition to
favouring witness testimonies at the CoI that were sympathetic to the
Government’s position, the Government of Sri Lanka and its proxies have
engaged in systematic intimidation and harassment of witnesses and
families that have refused to support the Government’ s patently false
position.

A representative list of these actions includes the following, carried
out, prior to, during and after CoI proceedings:

• threats carried out by telephone and in person;

• public questioning and temporary restriction on movement by police;

• forced reporting to police stations and a TMVP office;

• abduction and assault;

• intimidation, ffic light junctiono placethe Commission.ived
after the situation was relatively calm. ficers. ave sent Jehangir as
parbribery and threats by the CoI’s police investigation unit;

• ongoing surveillance by police;

• illegal arrest and temporary detention by the security forces;

• house searches;

• threatening letters signed by TMVP;

• intimidation while giving testimony at the CoI and while in the
witness protection room of the CoI; and denial of witness protection to
those seeking it.

The government made sure there was no proper witness protection in place,
and any support by a commissioner for a witness facing fear and isolation
was used to discredit both. The police investigation unit of the CoI came
to function as an intimidation unit towards the witnesses, making sure
that the truth was suppressed. The presidential order to stop video
conferencing of testimony by witnesses who had to flee the country was
another blatant move to suppress the truth.

Family members of victims were harassed and threatened to such a level
that their lives in Trincomalee became unbearable; some were forced to
flee the country. Two family members have died: Kanapathy, the guardian of
ACF driver Koneswaran, died consequent to being beaten by a naval officer
in an unrelated incident and Niranjala, wife of ACF worker Muralitharan,
from a brain haemorrhage resulting from high blood pressure a day after
she received a letter summoning her to appear before the CoI, following
months of official harassment. Several families and witnesses have been
forced to leave Sri Lanka and others are forced to live underground to
escape attempts by the Government and its proxies to silence those who may
point the finger at the Government for the killings. Perhaps the best
thing the witness protection unit of the CoI has done is to tell witnesses
frankly the unit cannot provide any protection.

In an attempt to debunk evidence that consistently points to State
responsibility for the ACF murders, the Government has carried out a
series of actions through the CoI including:

- attempts to provide or assert alibis for certain persons we
named as the killers in our report in April 2008;

- attempts to advance the time of the killings to make the LTTE’s
guilt more plausible;

- attempts to post date by two days the Police’s knowledge of the
killings;

- attempts to discredit the finding that commandos were involved
by denying the commandos ever went out with the Muslim home guard.

The Government’s control of the CoI through the role played by Deputy
Solicitor General Kodagoda and the complicity of some of the
Commissioners, has allowed the extraordinary attempts at cover up
described above to take place as well as an obvious and deliberate failure
to pursue questioning and investigation that could implicate the
Government.

The conduct of the CoI further degenerated after Dr. Nesiah, then a
Commissioner, was forced out by the President supported by the Counsel for
the Army Gomin Dayasiri for a perceived conflict of interests. No
attention was given to the manifest conflict of interests of other
Commissioners:

- Javid Yusuf with his long term association with the ruling SLFP;

- Mr. Douglas Premaratne, a former additional solicitor general
having close associations with the extremist party, the JHU; or

- Chairman Udalagama who as a member of the Judicial Services
Commission had improperly removed the ACF inquest from the Tamil Mutur
Magistrate.

The CoI ceased with a whimper in mid 2009. According to the Chairman, the
culprits in the ACF case were not identified because he ‘ran out of
funds’. However this admission has not prevented the Government from
coercing the family members to sign documents stating that they “agree
with the findings of the Commission that the deaths were caused by the
LTTE”. Thus it would seem that someone in the Presidential Secretariat has
been able to wind up the investigation and attribute responsibility on
behalf of the CoI.

The course of the ACF inquiry traces growing state hostility to legal
norms, arbitrariness in the use of police powers, and the politicisation
of the Attorney General’s office to the point of complicity in crime.
Extra judicial methods of dealing with inconvenient witnesses on occasion
to the point of murder have become the norm as several witnesses in the
ACF and Five Students cases came to know. These developments are not just
about the fate of the 17 ACF victims, but about developing attitudes and
practices that will determine the fate of the minorities and no doubt,
sooner rather than later, that of the Sinhalese population as well. There
is no excuse for leaders so obtuse and arrogant as to forget within a
generation the bitter lessons of the 1980s.

The case reveals the mindset behind the repression. The State consequently
makes itself far more venal than what its ideology attributes to the
minorities, as evident during rounds of communal violence. If the trend
continues, in the end there will be no standards or laws the citizen and
communities could appeal to. Anarchy is complete where truth loses all
meaning and the state itself incapable of rationality and foresight.

Rather than marking a return to normality, the end of war appears as just
another milestone for those in power. For them, the war and its aftermath
remain an opportunity for a return to an ideological agenda that sought
the debilitation of minorities, treating them as permanent enemies,
purposefully uprooted from lands that had been their home for centuries.
Their existence may be tolerated only under the jackboot of the State. The
human rights abuses so abundant during the decades of conflict will not
simply be forgotten. While those in power continue to suppress the truth,
the tragedy continues for those who have suffered these harms. Without
public recognition of the truth, including the brutalities inflicted by
the LTTE, it will never be possible to build a new course for the Island
based on principles of equality, justice and peace. A proper inquiry,
revealing the truth behind the ACF killings and the multitude of other
human rights abuses is necessary to avoid the further entrenchment of
ethnic politics. There is a need for an honest evaluation of the past that
can provide a basis for a common future for all Lankans.

0. Introduction: ACF 2006 – 2009: Tracing the Precipitous Erosion of the
Rule of Law

The ACF and a related case [1] mark an all important saga in the
relentless growth of impunity in Sri Lanka. The gruesome execution-style
murders of 17 aid workers with the French organisation Action Contre La
Faim in 2006; a criminal investigation that went nowhere; a half-hearted
inquiry by a Presidentially appointed commission of inquiry (which ceased
with a whimper in mid- 2009); and the fear and intimidation faced by the
families who sought justice, have dashed hopes of a return to peace and
the rule of law. The end of war rather than marking a return to
normality or better yet an opportunity to improve interethnic relations
and justice in Sri Lanka appears to have been only another political
milestone for chauvinist and authoritarian elements in power. They
treated the war as an excuse to return to an ideological agenda that
sought the debilitation of minorities; presenting them as permanent
enemies, purposefully uprooting them from lands that had been their home
for centuries and tolerating their existence only under the jackboot of
the State.

UTHR (J) withstood terror and challenged Tamil nationalist politics,
especially the strain spearheaded by the LTTE, which exemplified its
latent ruthless totalitarian potential. Many Tamils knew well its
dehumanising and destructive nature, even when many Tamil intellectuals
tried to explain the LTTE’s actions as an unavoidable consequence of state
terror and thus evaded taking responsibility of its actions. At the same
time, UTHR (J) documented and challenged the state policies and actions
which made minorities insecure and forced them to turn to armed struggle
and later to support destructive forces like the LTTE.

The course of the ACF inquiry traces growing state hostility to legal
norms, arbitrariness in the use of police powers, and the politicisation
of the Attorney General’s office to the point of complicity in crime.
Extra judicial methods of dealing with inconvenient witnesses often to the
point of murder have become the norm as several witnesses learnt. These
developments are not just about the fate of the 17 ACF victims, but about
developing attitudes and practices governing the imminent fate of the
minorities and no doubt, sooner rather than later, that of the Sinhalese
themselves. There is no excuse for leaders so obtuse and arrogant as to
forget within a generation the bitter lessons of the 1980s and find in the
fleeting pleasures of impunity a self-defeating notion of patriotism.

The ACF massacre is another instance of the inbuilt habit of using all
arms of the state to cover up a crime by a section of the security forces.
It advances the corrosion of the state and country in several ways.
Members of minority communities in state institutions and especially in
the security forces feel too powerless and insecure to act according to
their conscience. Friends and families of the victims and the local
community have a clear awareness of the perpetrators of the crime, but the
elites in Colombo continue to believe it within their power to suppress
the truth using the brute power of the state. Any civil society attempts
at raising concern are targeted and attacked as supporters of terrorists.

The government has exhibited an irrational obsession with hiding the truth
in every incident where harm was done to civilians from the minorities by
the armed forces. In many cases, the blame was not simply on one side –
the LTTE was responsible for a great deal of violence against civilians –
and if these cases were faced honestly they could have led to corrective
measures. There is presently no such interest. When the Government shelled
Mutur in August 2006 killing 50 mainly Muslim civilians, parallel to the
LTTE’s killing of civilians perceived as enemies, the State spied upon and
intimidated leaders of the local community who led demands for an inquiry
into violations by both parties, to stall any accountability. In the ACF
case as will be seen below, systematic intimidation of victim families was
resorted to in attempts to obtain signed statements from them blaming the
LTTE.

The Commission reports

On 14th July 2009, the BBC in a similar vein as other news media announced
‘Sri Lanka’s top human rights panel has cleared the army of killing 17
people working for a French charity in 2006’. As the basis for the
exoneration CoI Chairman Justice Udalagama reiterated to the BBC the
position in the excerpts from the final report as given in the Island:
“The evidence that was laid before us is that not a single witness stated
before us that they saw the army around the place at the relevant time…The
entire town was taken over by the LTTE at the time. The LTTE said on their
website (TamilNet) that they had taken over the town of Muttur.”

Justice Udalagama added, “There was other evidence like the presence of
Muslim home guards. They had access to the weapons. And it could have been
LTTE.” The question immediately arises; why not exonerate the Muslim home
guards, as no one testified before the CoI to seeing home guards in the
ACF neighbourhood on 4th August? The LTTE too could validly claim similar
exoneration. Blaming them simply on the grounds of being seen in town that
morning could apply to anyone depending on how one plays with the time of
the event.

That brings us to the main problem of the inquiry. The culprits were not
identified, according to Udalagama’s BBC interview, because ‘he ran out of
funds’. He also told the Daily Mirror (21 Jul.09) that ‘the use of video
conferencing was essential to hear evidence from the witnesses abroad but
this practice was stopped by a Presidential directive’.

Yet the report seems to confirm the LTTE’s culpability for these murders
by relying on a report of the pro-LTTE web site TamilNet, apparently the
one on 5th August stating ‘LTTE fighters returned to their positions
Friday (4th)’, to hold the LTTE was in control of the place on Friday 4th.
The Chairman thus rejects the government spokesman’s claim published in
the government media on 4th August morning that its forces were in control
of Mutur by the 4th morning. The CoI’s claim, “The evidence does not
disclose the presence of the commandos anywhere near the ACF office during
the period, that is, on the morning afternoon or evening of the 4th”,
skates on thin ice. We cite below Peter Apps, who was told on 5th August
by several Sri Lankan military commanders in Mutur that most LTTE fighters
had withdrawn from the town by early Friday (4th) and about two dozen of
them were sniping from the suburbs. Further by the 5th the Army had a post
in Mutur hospital, very close to the ACF pointing to the area being well
reconnoitred in advance. A police witness told the CoI that commandos were
sighted in Al Hilal school nearby on the 3rd and 4th.

It was the difficulty in positing LTTE-control of the area throughout the
4th that impelled the CoI to advance the time of death to the early hours
of 4th morning in accordance with the JMO’s assessment; despite testimony
from of Rev. Sornarajah who saw the ACF staff after 8.30 AM and others at
the Methodist Church 400 yards away that makes it clear the killings did
not take place before 11.00 AM.

What then one might ask is the value of a very incomplete and tendentious
report? The answer surely is, propaganda aimed at a Sinhalese
constituency. Using such a poor basis in evidence the report is generous
with somewhat intemperate strictures on civil society lawyers as “more
interested in satisfying their paymasters” and on the ACF as ‘looking more
for their comfort and convenience than that of the safety and security of
their workers.’ The CoI investigates Trincomalee based ACF staff members’
misjudgments in full. But appears to have failed similarly to inquire into
the inactions by the army major, colonel and Senior Superintendent of
Police. The three had been appealed to by the Trinco staff of ACF to
ensure the safety of the marooned workers who were later murdered.

Naturally, journalists and those who were assailed were interested in
copies of the full commission report. When they asked individual
commissioners, they were directed to the office of the President, the
proprietor of the report. Having failed, they concluded that the only use
then being made of the report was to leak extracts to selected media
through a privileged counsel.

What happens when a Commission Reports

The irony did not stop there. On Saturday 18th July this year, police in
civil went to the homes of ACF families in Trincomalee and summoned them
to Fort Frederick which functions as army HQ and the government’s
administrative centre. In that forbidding environment, they were
confronted with a very lean, sickly looking, greying and slightly hunched
man on the fairer side, flanked by two women in civil whom the families
took to be from the police. There were several others in civil who struck
the families as members a police intelligence unit. The latter took video
shots of those brought there singly and in groups. The sickly looking man
introduced himself as a private attorney from Colombo, who had come for
their sakes, in order to get them more money from the ACF. He spoke in
Sinhalese, which was translated into Tamil by one of the women next to
him. The families thought the whole thing fishy, since if the man was a
private attorney, he could have met them elsewhere, than at the seat of
government in Trincomalee having the highest security. They were given two
letters in English legalese to sign (see Appendix I), one addressed to the
Attorney General and the other to the President.

The one addressed to the President stated: “We are extremely grateful to
Your Excellency for appointing a Commission of Inquiry and ensuring that
justice prevailed. We agree with the findings of the Commission that the
deaths were caused by the LTTE and the compensation as determined must be
paid by the ACF for gross negligence to the heirs of deceased for a period
of 10 years, based on the last salary.”

The one addressed to the Attorney General stated: “We thank your official
counsel for the proper and impartial manner in which they presented
evidence and the kindness with which they treated us when we came to give
evidence. We greatly appreciate their services.”

Despite the Commission running out of money and being wound up without
identifying the killers, it took someone working closely with the
Presidential Secretariat (and thus had access to the Commission’s Report)
a mere jiffy to complete the investigation. A parent who was present told
us, “I do not know English, but I gathered from others that the truth had
been turned on its head and we were to give our assent. Some of us gave
excuses trying to wriggle out of it. The Attorney was firm that we must
sign. That is the situation now. If we do not sign, we must live on from
day to day not knowing if we would have another night’s sleep on our bed.”
On 25th July, police in civil came and summoned the families to Fort
Frederick and in the same venue the letters were collected by the two
women who were there earlier, although the attorney was not present. The
truth was evidently thus signed, sealed and delivered as the Stevie Wonder
hit goes. There are no prizes for guessing who is orchestrating this
drama. The attorney was unmistakably one very close to the President.

The matter of the letters evoked adverse publicity. The BBC reported the
fact of duress against the unwillingness of the families. On 1st August
the letters were returned by post by an unknown sender, stamped at
Thampalakamam post office. The same day the families were called to a
peace centre run by a priest. They were met by lawyers identifying
themselves as from the Human Rights Commission in Colombo who spoke in
English, which was translated. They expressed concern about the letters
the victim families had been forced to sign. They asked them who was
responsible for the killings. The people maintained as always their formal
stance that the incident took place 18 miles away and they had no way of
knowing. The visitors did not push the matter further.

This report, which deals with the proceedings of the Presidential
Commission of Inquiry relating to the ACF killings in some detail, traces
the rapid degeneration of the arms of an already fickle state in the last
three years. The habit of treating the minorities and those who defend
their rights as treacherous undesirables and liars who must be controlled
by brute force is now deeply entrenched. The ACF and Five Students’ cases
reveal the mindset behind the repression. The State consequently makes
itself far more venal than what its ideology attributes to the minorities,
as evident during rounds of communal violence. If the trend continues, in
the end there will be no standards or laws the citizen and communities
could appeal to. Anarchy is complete where truth loses all meaning and the
state itself incapable of rationality and foresight.
.
.
.

18 The Cost of a Lawless State and Minorities

18.1 Degradation of the Rule of Law and the end of Constitutional Rule

The State’s unwillingness to face the truth in a number of cases that
attracted international attention and the means it has adopted to stifle
the truth, has been dehumanizing for both the majority community and the
minorities. The developing power relations as exemplified at the
Commission leave the minorities in the country hardly any breathing space.
Had the Government treated these cases as means to adopt corrective
measures and win over the minorities, the prospects for Lanka would be
looking brighter today. That refusal to face the truth was rooted in a
Sinhalese hegemonic agenda and it spelt the precipitate decline in respect
for the rule of law that we have experienced.

The whole array of abuses the Government resorted to went far beyond the
need to combat the LTTE. The STF-instigated murder of 10 Muslim farmers
south of Pottuvil in September 2006 had nothing to do with fighting
terrorism. It was an act of state terror motivated by ideologically
inspired claims over land. Once the Government began moving on this track,
what followed was predictable. The attitude, from which the families of
victims have suffered in the ACF and other cases, logically entailed the
detention of hundreds of thousands of IDPs who came from the Vanni. The
main reason being to cover up the Government’s use of bombing and
shelling.

The law and constitution may deem all citizens equal, but the rule of law
is in abeyance, there is no right to life and no right to appeal against
arbitrary detention. The prisons are filling up not only with Tamils but
also Sinhalese who are deemed traitors to state ideology. Shantha
Fernando, secretary to the National Christian Council felt a burden for
fellow Tamil citizens, who were stuck in Colombo facing impossible
security regulations and accompanied some to police stations to register.
Frequently, the Police saw this man who should have been given a medal for
building national unity as a traitor. What is very disturbing about
Shantha Fernando’s detention is the use of the PTA merely to silence
someone for wanting to discuss problems faced by Tamil civilians.

The present regime has not shown any interest in encouraging a healthier
dialogue among communities to enable a reevaluation of 60 years of
corrosive conflict so as to put us back on track. Instead it is bent on
manipulating the state machinery and institutions towards a narrow
“family-centred power agenda” at the expense of democratic norms and the
long term interest of the people. Illusions work only in the short term.

Espousing equality and justice in words without structural change cannot
bring real benefits to the life of ordinary people. It is easy for the
ruling elite to promote polarising ideologies and at the same time form
bizarre alliances among themselves to consolidate power until the cracks
appear. Thus the eastern leader of LTTE, Karuna (Muralitharan), who was
party to massive human rights abuses against Tamil and Muslim civilians
and to massacring hundreds of surrendered policemen, became a minister in
the present government acting against those who challenge him from within
his allotted patch without the slightest remorse, with police complicity
guaranteed. It is not a problem for those in power as it is the same
culture they all promote and thrive on. For the people it is an
unmitigated tragedy.

A similar irrational and counterproductive use of state power applies to
the case of the war zone doctors who, whatever their motivation, served at
great risk the sick and injured in the Vanni during the latter months of
the war. After 54 days of detention reportedly under the CID, they were
produced before the Press on 8th July 2009. Despite Human Rights Minister
Mahinda Samarasinghe asserting that, “I can’t reveal all the details of
the confessions [by the doctors], but you will see when they appear in
court.”, the doctors appeared not in court but at the Defence Ministry,
accompanied by handlers and not lawyers, one of whom pulled up a doctor
for admitting that he was a prisoner. One doctor at this Truth Circus gave
the number injured from January to mid-April as 650; whereas during the
same period the ICRC shipped 5000 injured.

A proper accounting for the dead and injured would mean first making up
lists by talking to the IDPs. But this is what the Government appears
intent on preventing.

The alleged confession by the doctors reveals the tremendous growth of
arrogance among the rulers and their minions in uniform leading to the
draining of common sense and atrophying of intelligence. Sadly, unlike in
the 1980s, no Sinhalese medical professionals are supporting the cause of
their Tamil colleagues who did their best for the injured in the war zone.

It is the tragedy of the country to be stuck with such paranoid rulers who
see spectres and imagined enemies of the state everywhere and drive the
country towards superfluous militarisation and repeated conflict. The case
of the doctors makes clear the real reason why the IDPs from the Vanni are
detained en masse. While their principal anger is with the LTTE, the
Government is afraid they would tell the world about bombing and shelling
by the State while they ran from place to place.

The recent long and congenial interview with President Rajapakse carried
in the Hindu (6th – 8th July 2009), in response to a quesiton about the
three doctors, the President was too much the politician for a direct
answer. His secretary Lalith Weeratunga filled in without mincing words,
“They were lying through their teeth [about civilian casualties in the No
Fire Zone]. And they are public servants, paid by the government. If they
go scot-free, it will set a very bad precedent.” Weeratunga was according
to those familiar with the workings, the virtual behind-the-scenes
director of the ACF inquiry.

The course of the government in Lanka has a significant resemblance to
Macbeth on stage. The rulers do not seem to be able to grasp that the war
is over and the new challenges are very different and require
statesmanship. Instead the rulers appear even more obsessed with finding a
Tiger behind every bush and to build Tiger castles in the air so as to
justify the enormous political cost and drain on resources involved in
perpetuating the Defence Ministry’s stranglehold on the country and
disregard for the law.

Against this, a common thread runs through the handling of the ACF and
other cases and the detention of the doctors. The Government will use any
fraud, violence or intimidation to subvert any inquiry that would find the
security forces guilty of serious crimes, and indeed some like the killing
of the five students were orchestrated from a high level. It is a
reflection of Sinhalese hegemonic ideology to make the security forces a
holy institution that would put the minorities in the right place. The
attacks on the media show that this trend is deeply inimical to the
Sinhalese themselves.

18.2 Incompatibility of Justice with the Mores of the Regime

It makes the position of minorities hopeless and the rulers cannot help
imagining Tigers everywhere. They can be relatives of victims of state
atrocities and also those in positions of authority who had the courage to
do the right thing by the victim. Kayts Acting Magistrate Mrs. Srinithy
Nandasekaran had after the shelling of Allaipiddy in August 2006 gone
there with three ambulances defying the Navy’s threat to open fire and
brought relief to the injured. A few days later, on 20th August 2006 the
parish priest Fr. Jim Brown disappeared together with an elderly
parishioner Wenceslas when they went to the church after signing a log
book at the navy check point.

Upon hearing about it two days later Mrs. Nandasekaran went to Allaipiddy
with the Police and ordered the Police to take custody of the log book at
the navy checkpoint. The Navy refused to give it. The next day the Chief
Justice acting in his capacity of chairman of the Judicial Service
Commission removed her from the position of Acting Magistrate, Kayts. Over
this and her courageous stand in two child protection cases that were
embarrassing to the LTTE, Mrs. Nandasekaran was selected the 2009 South
Asian Regional Finalist for the US Secretary of State’s Women of Courage
Award. Stephen Suntheraraj who worked as a child protection officer in
Jaffna and earned the ire of the LTTE for assisting Mrs. Nandasekaran in a
child abuse case by one of its senior advisors, was arrested in Colombo in
February 2009, released on a court order on 9th May and abducted soon
afterwards at a traffic light junction, after which he has disappeared.

The navy log book pertaining to Fr. Jim’s case was never handed in. It was
along with this circumstantial evidence, an eyewitness account of armed
men on two motorcycles following Fr. Jim to the church in that
navy-controlled zone and the witnessed hostility of the local navy
commander Commodore Nishantha to Fr. Jim, a clear cut case for a
commission of inquiry.

As for Fr. Jim Brown’s case, Justice Udalagama, the Chairman of the
Commission of Inquiry, told the Daily Mirror (16th June 2009) “We were
unable to investigate the disappearance of Rev. Fr. Jim Brown as his body
was not found…” The least the Commission could have done is to demand the
log book that Mrs. Nandasekaran was refused. Here again it needs to be
pointed out that Justice Udalagama was one of the three members of the
Judicial Service Commission that transferred Mrs. Nandasekaran, and
earlier the same month removed Magistrate Mr. M. Ganesharajah from the ACF
case on the eve of his delivering the post mortem verdict, having already
issued orders for a rigorous investigation of what his undelivered verdict
described as a crime against humanity. (See UTHR(J) Special Report 25.)

What is the most urgent issue now is the restoration of the rule of law.
Unless there is freedom of expression and open discussion, talking about a
political settlement has no meaning. It is only the voices of those who
see any political settlement as giving too much to the minorities and
standing in the way of their Sinhalisation schemes that would dominate.
This poisonous air creates its own dynamism.

In the present situation where benign political movement is unlikely, our
energies are best directed towards the restoration of democratic norms and
the rule of law. Emblematic cases like the ACF and Five Students cases
serve as good starting points to focus on issues. Information about these
cases is available from IIGEP archives, the Commission proceedings and
reports like ours. The countries that sent eminent persons have an
obligation to see these cases through and ensure that justice is done.
They created expectations among victims and their families, and because of
this attention a number of them have suffered enormously and have been
harassed to this day as we have shown. When some of them badly needed
asylum or relief, there was no IIGEP or ACF to help them.

Let it not be said that international humanitarian agencies are generous
with sacrificing their local staff and doing so little to see that justice
is done, without which humanitarian work becomes a nightmare. Others
blamed the ACF in 2006, but several more had local staff working in the
Vanni. The ICRC itself lost three workers. They all have an obligation to
support fully a proper inquiry into the ACF tragedy.

The next time Sri Lankan representatives come to the UN Human Rights
Council calling themselves a human rights minister, an attorney general or
deputy solicitor general, claiming to improve human rights for all the
people of Lanka, it would be time to say the joke has gone too far. If the
government continues to show disregard towards accountability, an
international inquiry becomes essential, taking into consideration there
are many witnesses outside the country and the long term interest of
humanitarian work in conflict zones. The IIEGP too needs to demand such an inquiry.

Read The Complete Report at: http://www.uthr.org/SpecialReports/spreport33.htm

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