Report of the Special Rapporteur, Mr. Bacre Waly Ndiaye submitted pursuant to Commission on Human Rights resolution 1997/61 - Visit to Sri Lanka
|119. Effective impunity encourages political violence and is a serious
destabilizing element in all contexts of the Sri Lankan socio-political system. Respect
for the rule of law is essential to maintain order and stability and to protect human
rights in any country. Impunity perpetuates the mass violation of human rights. There have
been periodical extrajudicial executions, but few perpetrators have been brought to
justice. Furthermore, impunity is an obstacle to democratic development and peace
negotiations, and makes reconciliation difficult. This culture of impunity has led to
arbitrary killings and has contributed to the uncontrollable spiralling of violence.
120. The systematic absence of investigation, either civil or military, into violations of the right to life facilitates impunity. Investigations are rarely conducted, and when they are, they do not lead to the appropriate convictions or penalties.
121. During the Special Rapporteur's visit to Sri Lanka, most of the human rights advocates with whom he met as well as relatives of victims of human rights violations stated that in Sri Lanka, soldiers and policemen who commit fundamental human rights violations such as killings, torture and acts of disappearances are rarely punished. Neither are they fully held accountable for their acts.
122. Several relatives of disappeared people and human rights organizations from all areas of Sri Lanka have expressed concern that many members of the security forces and others allegedly responsible for grave human rights violations in the recent past continue to hold official posts in the same areas where the violations took place and may try to interfere with the investigations. This was a particular concern in relation to the hearings held by the commissions of inquiry in the areas allocated to them, most notably in the north-east, where concern pertains not only to members of the police but also the army, the home guards and various armed militant groups.
123. The Attorney-General and the Government, throughout its correspondence with the Special Rapporteur with regard to cases of executions in recent years, expressed their willingness and intention to bring to justice members of the security forces believed to be responsible for human rights violations. Unfortunately, the Special Rapporteur notes that little progress has been reported in those cases submitted by him since the creation of the mandate. The Attorney-General said that every effort was being made to expedite those cases, but that the Government had no control over court proceedings and the steps taken by the defence in such cases to protect the interest of the accused. However, while recognizing that the Government cannot intervene once a trial has started, the Special Rapporteur wishes to point out that the Attorney-General himself has recognized that there are delays in actually bringing members of the security forces suspected of involvement in human rights violations to trial.
124. With regard to all the following cases, the Special Rapporteur wishes to stress the importance of carrying out exhaustive and impartial investigations into all allegations of human rights violations, with a view to clarifying the facts, identifying those responsible and bringing them to justice, and granting adequate compensation to the victims or their families. As experience gained in other countries has shown, establishing the truth about the past is essential for preventing renewed human rights violations in the future. The following cases illustrate this point.
125. The case of Richard de Zoysa. Richard de Zoysa, a well-known journalist and actor, was at the time of his abduction and murder in charge of the Colombo office of the International Press Service. De Zoysa lived with his mother, Dr. Saravanamuttu. On the night of 17/18 February 1990, an armed group entered their home, removed Mr. de Zoysa and drove away without explanation. Dr. Saravanamuttu immediately went to the Welikade police station and lodged a complaint. The next day, 19 February 1990, de Zoysa's dead body was found in the sea at Moratuwa, some 12 miles south of Colombo. He had been shot in the head and the throat, and his jaw was fractured. At the inquest the following day, Dr. Saravanamuttu said that she could identify two of the abductors. Three months later, she recognized a man on television as the man who had taken her son. He was a high-ranking police officer. She informed her solicitor who brought it to the notice of both the Magistrate conducting the inquiry into the incident and the police. However, the suspect was not arrested nor was an identity parade held, nor has Dr. Saravanamuttu's identification been heard by a judicial officer. Both Dr. Saravanamuttu and her lawyer, Batty Weerakoon, have received death threats. Police officers assigned to guard Batty Weerakoon have also received such threats.
126. There are a number of reasons why the investigation into this case is unsatisfactory, and need to be investigated themselves. In principle, it is unsatisfactory that the police investigate matters in which their own members are suspected of being involved. This has been recognized as far back as 1970, when a Commission headed by a former Chief Justice recommended independent machinery to look into such complaints. In addition, there are special reasons for unease regarding the conduct of the police and the way the investigations were carried out. They include the following:
(a) It was possible, in the middle of Colombo, in a residential housing estate, close to the police station, to abduct a well-known personality, in what could be described as a military-style operation. The perpetrators must have felt that they could do this unimpeded, especially as they had alerted a person known to de Zoysa that they were on their way (see below);
(b) A person who knew the victim was forced at gunpoint to disclose de Zoysa's address. He immediately telephoned a friend, who in turn notified a Senior Superintendent of Police of the risk to Richard de Zoysa. This officer in turn rang Welikade police station which is situated very close to de Zoysa's house. Had this telephone call been made and acted on promptly, the Welikade police should have been able to prevent the abduction or apprehend the abductors. (Note that Richard de Zoysa's own house had no telephone so his friends were unable to warn him themselves.);
(c) When the police did arrive at the scene, after the abduction, they did not take the usual investigatory steps such as testing the premises for fingerprints;
(d) Despite the fact that Dr. Saravanamuttu claimed she could identify two of the abductors, she was never asked by the police to give a description of them;
(e) A possible motive for the killing was revealed by the State-owned news agency, Lanka Puwath, which stated that police had informed the agency that investigations revealed that de Zoysa was an activist for the Sinhalese Nationalist Party, the Janatha Vimukthi Peramuna (JVP), and that he had been sending false messages regarding human rights violations overseas. In a written statement read out to Parliament the head of Lanka Puwath said, "I obtained this news item from a reliable police source whom I have found totally responsible and accurate in my past experience". Moreover, the State Minister for Defence had earlier read a statement to Parliament concerning people who were sending "false information" about human rights violations abroad, to influence donors and prevent aid flows to Sri Lanka. A subsequent news item in a State-controlled newspaper stated that intelligence sources had submitted to the Defence Ministry a list of "80 names of influential people" who had supported the subversives;
(f) Once Dr. Saravanamuttu made the identification of the man who had abducted her son, it was a clear duty of the police to question neighbours and other witnesses as to whether they had seen a person so described on the night of the abduction;
(g) There was a distinct lack of interest on the part of the police to investigate the death threats received by Dr. Saravanamuttu and her lawyer. In the latter's case, the language of the threat, with its reference to foreign aid, clearly reflects the sentiments described in paragraph (e) above. Indeed, several complainants, witnesses and lawyers have been subjected to death threats, harassment, or allegedly killed;
(h) There was apparent collusion between the police and the lawyers for the suspect, to such an extent that the Magistrate felt commpelled to comment, "(a)t this stage I inquire from [prosecutor] Gamini Perera as to whether Mr. Godfrey Gunasekera, who appears with him, is in this court on behalf of the prosecution or to conduct the defence. I have seen him on several occasions secretively whispering certain things to counsel for the suspect". Mr. Gunasekera is a Senior Superintendent of Police who appeared in court that day for the first time, the day the police had been ordered to produce the suspected police officer.
127. This case is an example of the large majority of investigations into human rights violations which in Sri Lanka are not carried out by an authority which is fully independent of those suspected to be responsible for the human rights violations.
128. The Special Rapporteur urges that reports of threats or intimidation of complainants, witnesses, lawyers or others involved in the bringing of those responsible for human rights violations to justice be fully investigated, and legal action taken against those responsible. The Special Rapporteur further urges that adequate protection be provided to anybody threatened in the course of an investigation into human rights violations. He notes that the police officers assigned to protect Batty Weerakoon also received death threats, and it is unlikely that their names and assignments would be known outside police circles.
129. Case of Mr. Sarath Karaliyadda. In a report to the Commission on Human Rights (E/CN.4/1990/22, para. 389), the Special Rapporteur described the case of Mr. Karaliyadda, a lawyer who was found dead on 27 October 1989 together with four other persons, a few hundred metres away from his home in Teldeniya in Kandy district. He was reportedly abducted on 26 October 1989 by three armed men, including one in army uniform. According to the information received, Mr. Karaliyadda had been representing, in a magisterial inquiry, the relatives of a 16-year-old student, Jayantha Bandara, who had been shot by police during demonstrations at Teldeniya in June 1989. It was reported that seven police officers of Teldeniya police station were questioned in the inquiry and that two of the witnesses had been killed since the start of the inquiry. In its reply to the Special Rapporteur (E/CN.4/1991/36, para. 475 (c)), the Government of Sri Lanka stated that an investigation revealed that on 26 October 1989, eight armed persons dressed in civilian clothes entered Mr. Karaliyadda's house in Teldeniya police area. These persons had ransacked the house and removed jewellery and cash. They led Mr. Karaliyadda away from the house, and his dead body was subsequently found about a quarter of a mile away. A magisterial inquest was held by the Teldeniya magistrate and was to be resumed after further investigations.
130. The Special Rapporteur did not receive any further information regarding this case. It appears that the authorities did not resume the inquiry into the death of Mr. Bandara or hold any further investigations regarding the killing of the lawyer and the witnesses.
131. On 17 May 1985, 23 young men from Naipattimunai, Amparai district, were allegedly arrested by Special Task Force (STF) personnel from Kallady camp and made to dig their own grave. Subsequently, they were allegedly shot. Mr. Paul Nallanayagam, President of the Kalmunai Citizens' Committee, was arrested and charged with spreading rumours and false statements after speaking to foreign journalists about the incident. During his trial before the Colombo High Court in mid-1986, a lot of evidence emerged about the disappearance of the 23 young men but no further action against those responsible has been taken since. Paul Nallanayagam was acquitted of all charges on 17 July 1986. It was reported that the Government of Sri Lanka did not take any action and that the official position remains that none of the disappeared had been arrested. Although a lot of evidence was available at the time about the arrests and subsequent disappearances by the STF, the police did not make any further attempts to investigate the incident.
132. The Special Rapporteur urges the Government to establish a full and impartial investigation into the disappearance and alleged killings of the 23 young men. He is concerned that no action has been taken by the Government to establish the fate or whereabouts of these men, nor who was responsible for their arrest and killing in custody. He hopes that the alleged perpetrators, namely the STF officers, would be brought to justice and that compensation paid to the relatives.
133. Case of Mr. Wijedasa Liyanarachchi. On 2 September 1988, Mr. Liyanarachchi, a lawyer, died while in custody at Colombo hospital with multiple injuries resulting from torture. He had been arrested on 25 August 1988 as a suspected member of the JVP. The alleged perpetrators, three police officers from Tangalle police station, were convicted in March 1991 after the charges against them had been reduced to illegal detention and conspiracy to detain illegally. They were sentenced to suspended sentence and fined. A Deputy Inspector General of Police (DIG) was also suspected of involvement in the illegal arrest and detention of Mr. Liyanarachchi and in attempting to cover up his death due to torture, but has not been charged. The court recommended that investigations be reopened to establish who was responsible for the murder of Wijedasa Liyanarachchi and particularly to investigate the role played by the DIG. The way in which the Government proceeded after the court recommended that investigations be reopened in this case is an indication of the lack of political will to prosecute members of the security forces implicated in human rights violations in this period in the south.
134. Shortly after the judgement, the first accused reportedly committed suicide. The DIG was appointed head of a special police team (Bureau of Special Operations), but subsequently took early retirement. In March 1992, at the request of the CID, the Maligakanda magistrate's court ordered a fresh investigation into the case. It directed that the passport of the retired DIG be impounded to prevent him from leaving the country. He then went underground and issued a number of statements to the press in which he spoke of death squad activities in the south of the country, providing, for instance, a list of 830 persons whom he said had been killed between July and November 1989 in the Central Province. He later repeated these allegations in sworn statements. Instead of ensuring that such serious allegations were properly investigated, the authorities immediately filed a case in the High Court against the retired DIG and several newspapers that had published the statements, charging them with bringing the Government into disrepute and creating disharmony among different communities. Soon afterwards, the retired DIG left the country in circumstances which were not clear. In June 1993, however, he returned. The next day, he appeared in the High Court and was granted bail. The Attorney-General's Department was quoted as saying that they would consider withdrawing the charges against him if in turn he would withdraw the allegations he had made in the various sworn statements. On 8 July 1993, the retired DIG filed such a sworn statement, also implying that some of the earlier statements had not originated with him. The Attorney-General then withdrew all charges relating to the sworn statements. The investigation into his role in the abduction, torture and illegal detention of Wijedasa Liyanarachchi, as recommended by the High Court, remains to be implemented. On 29 July 1993, the retired DIG was appointed Vice-Chairman of the Sri Lanka Ports Authority, a senior position in the government service.
135. The Special Rapporteur believes that those thought to be responsible for extrajudicial executions must be held to account regardless of whether they are officials of a past or current Government, or whether they are members of the security forces or of semi-official paramilitary groups. Those against whom there is sufficient evidence of their involvement in human rights violations should be tried and their trials should conclude with a clear verdict of guilt or innocence. All trials should be conducted in full conformity with internationally recognized norms for fair trial. The present situation does not encourage soldiers and policemen to respect human rights; on the contrary, disproportionate criminal sentencing emboldens policemen and soldiers to continue to violate basic human rights principles.
136. In a report to the Commission on Human Rights (E/CN.4/1993/46, paras. 539, 543), the Special Rapporteur reported that on 29 April 1992, 89 Tamil villagers, including 20 minors, were allegedly killed by a group composed of policemen and Muslim home guards in the villages of Muthugal and Karapola, Polonnaruwa. These killings reportedly took place in reprisal for a massacre, which took place some hours earlier, of 54 Muslim villagers by members of the LTTE. Most of the victims were said to have been shot or hacked to death. Six persons were reportedly captured by home guards in the surrounding countryside, and one person was said to have been taken into police custody. Their bodies were found in an irrigation ditch on the following day. A special investigation into the case was reported to have been opened, but no disciplinary or judicial procedures were said to have been opened against those responsible, nor did the families of the victims receive any compensation.
137. Information received from the Government of Sri Lanka by the Special Rapporteur is contained in the same report to the Commission (para. 543). The Government stated that the attacks had been carried out by Muslim villagers from a nearby village, in retaliation for an earlier attack by LTTE "terrorists" which had cost the lives of 56 people. This was part of the ethnic cleansing strategy used by the LTTE to drive Muslim and Sinhalese villagers out of the territory they claimed as their homeland. In the reprisal attack on Muthugal and Karapola, 74 Tamil villagers were killed and 44 others wounded. The Ministry of Defence of Sri Lanka appointed a committee to inquire into the two attacks, with a view to ascertaining who was responsible and establishing whether there was any lapse on the part of the security personnel, and to recommend measures to prevent the recurrence of incidents of this nature.
138. On 22 September 1993, the Special Rapporteur sent a follow-up letter to the Government of Sri Lanka in which he referred to a reply received from the authorities in 1992 concerning the killing of 130 villagers in Alanchipothana, Karapola and Muthugal in April 1992 (see E/CN.4/1993/46, paras. 539 and 543). The Government informed him that a committee chaired by a retired judge of the Supreme Court had been appointed to inquire into the killings. The Special Rapporteur requested to be kept informed about the progress of the investigations. He also asked the Government to provide him with detailed information about the working of the committee, in particular the legal basis for its inquiries, the procedures followed, its relations with other, judicial or administrative, investigations, etc.
139. On 30 and 31 December 1993, the Government provided the Special Rapporteur with information in reply to his letter of 22 September 1993, (see E/CN.4/1994/7, para. 555). The Government informed the Special Rapporteur that a three-person committee, appointed by the Ministry of Defence to investigate the incidents, had presented a confidential report containing conclusions and recommendations. The committee had found that the killings at Karapola and Muthugal were carried out by villagers and some home guards of Alanchipothana, in reprisal for the earlier killings by the LTTE at their village. Reportedly, the Karapola police post did not attempt to prevent the violence. The committee also stated that there had apparently been no control over the issue of arms and ammunition, particularly to home guards, and recommended, inter alia, a disciplinary code of conduct for the home guards who should be placed under a defined authority such as the army or the police; the creation and training of a paramilitary force to supplement the home guards in the defence of border areas against the LTTE; investigations into all complaints and action, if necessary, against any member of the group.
140. In a letter dated 23 September 1994, the Special Rapporteur requested further details on the investigation carried out by the committee, particularly with regard to the date on which the report was submitted and the follow-up given to the recommendations. The Special Rapporteur also inquired whether anyone had been brought to justice in connection with the killings at Alanchipothana, Karapola and Muthugal, and whether any judicial or disciplinary measures had been taken with regard to those based at the Karapola police post.
141. While welcoming the Government's prompt action to investigate this incident, the Special Rapporteur is concerned that the full report of the committee's findings has not been made public. The Special Rapporteur has not received any further information about the prosecution of police officers, home guards and villagers allegedly involved in the reprisal killings of the villagers of Muthugal and Karapola. The Special Rapporteur has also received reports about two further instances of reprisal killings, where police investigations were announced without any independent investigative body being appointed. The first took place at Mailanthanai in Batticaloa district on 8 August 1992. Twenty-four soldiers were accused on 83 charges relating to the murder of 39 Tamil men, women and children. The preliminary hearings in the case were concluded at Polonnaruwa Magistrate's Court in March 1994, having been transferred there from Batticaloa without any explanation in mid-1993. Of the 24 soldiers, 3 were discharged and 21 were committed to stand trial in the High Court. The second case in which a police investigation was ordered is the reported killing by soldiers of about 10 people at Velaveli in Batticaloa district on 24 October 1992. The then Prime Minister Dingiri Banda Wijetunga was reported as saying that these killings would be investigated by the police, but there has been no subsequent evidence that an investigation had started.
142. Through the above-mentioned cases of executions, it appears that the most severe punishment ever handed out to human rights violators is suspension from duty, despite the gravity of the offences, including extra-legal executions, with which they were charged. While civilians who peacefully exercise their fundamental civil and political rights are charged and sentenced to years of imprisonment, soldiers and policemen who flagrantly violate the rights of innocent civilians are charged before their own peers and sentenced to only months of imprisonment. This situation encourages impunity. The Special Rapporteur believes that penalties should be imposed that relate to the seriousness of the offences in order to deter further human rights violations. Respect for the rule of law cannot be promoted unless all trials are conducted in full conformity with internationally recognized standards.
143. Impunity for those responsible for human rights violations remains a serious concern. Progress in a few court cases against members of the security forces charged in connection with disappearances and extrajudicial executions is slow, as are investigations into many other cases. While in Colombo, the Special Rapporteur met with Mr. W.C.N. Rajapakse who recounted the case of his sister, Ms. W.W. Chandrawathie. She was 22 years old when, on 26 September 1990, she was forcibly taken from her house in Eppawala, Anuradhapura district, by a sub-inspector of police accompanied by other officers of the Eppawala police station. According to her father and other relatives, she was dragged to the nearby jungle and allegedly raped by the sub-inspector, who subsequently shot her. They also alleged that her body was later burnt on tyres at a nearby quarry. Officials at the local police station refused to assist the family when they attempted to lodge a complaint. Her family then contacted the Deputy Inspector General of Police of the area, who initiated investigations, the results of which were presented to the Magistrate's Court.
144. As a result of the magisterial inquiry into the rape and death of Ms. W. Chandrawathie, it has been alleged that her relatives received several death threats. Her brother, Mr. Rajapakse, was allegedly arrested on the first day of the inquiry by members of the Anuradhapura police and held at Anuradhapura police station for 12 days, during which time he was allegedly beaten. The father of the victim and one of several people who identified the sub-inspector and a constable as being responsible received several threats.
145. The Government of Sri Lanka has repeatedly announced that relevant authorities have been asked to expedite court cases against members of the security forces suspected of human rights violations. It appears, however, that this case has been postponed six times now. When in Colombo, the Special Rapporteur met with the victim's brother and was informed that in the meantime, his father had died without living to witness the offenders being brought to justice. He was also told that witnesses could not afford to travel to Colombo only to have the case postponed. The continual delays were time-consuming and a financial burden for the family and the witnesses.
146. The Special Rapporteur brought this case to the attention of the Attorney-General during their meeting and he was told that the trial had been fixed for 20 October 1997 in Colombo High Court.
147. The Special Rapporteur stresses the need to re-establish accountability among the security forces by bringing to justice those responsible for past human rights violations, for the sake of the victims and their relatives, and also to prevent such abuses from happening again. A system of compensation for the families of victims should be developed, as well as a system to protect witnesses and their families who participate in criminal investigations and give testimony.