Third anniversary of the ACF massacre

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

By UTHR(J)

Summary

(August 04, Colombo, Sri Lanka Guardian) 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.

[1] i.e. the Five Students case that we will be dealing with in a separate report

-Sri Lanka Guardian