SUPREME COURT OVERTURNS CONVICTIONS IN LANDMARK

UNCLAS SECTION 01 OF 03 COLOMBO 001034

SIPDIS

DEPARTMENT FOR SA/INS

SENSITIVE

E.O. 12958: N/A
TAGS: PHUM PGOV CE
SUBJECT: SUPREME COURT OVERTURNS CONVICTIONS IN LANDMARK
HUMAN RIGHTS CASE


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SUMMARY
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1. (SBU) ON MAY 27, THE SUPREME COURT OF SRI LANKA
EXONERATED THE FOUR REMAINING MEN CONVICTED OF PARTICIPATING
IN THE BINDUNUWEWA MASSACRE OF OCTOBER 2000, WHICH LEFT 27
TAMIL YOUTHS DEAD AND 14 INJURED AT A DETENTION CENTER IN
BADULLA DISTRICT. THE FIFTH SUSPECT WAS ACQUITTED IN JULY

2004. THE ORIGINAL CONVICTIONS HANDED DOWN BY THE HIGH
COURT WERE OVERTURNED ON APPEAL, ON THE GROUNDS THAT THERE
WAS INSUFFICIENT EVIDENCE TO CONVICT THE FIVE SINHALESE
SUSPECTS. AS A RESULT OF THE RULING, NO ONE HAS BEEN
CHARGED IN THE HIGH PROFILE AND ETHNICALLY SENSITIVE CASE, A
SIGN OF THE INABILITY OF THE JUDICIAL SYSTEM TO HOLD GUILTY
PARTIES ACCOUNTABLE FOR HUMAN RIGHTS VIOLATIONS. THE
FAILURE OF THE GOVERNMENT OF SRI LANKA (GSL) TO IDENTIFY THE
PERPETRATORS AND PUNISH THEM WILL ADD TO THE GRIEVANCES OF
THE TAMIL COMMUNITY AND COULD AGGRAVATE MISTRUST ACROSS
ETHNIC LINES. END SUMMARY.

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SURPRISE ACQUITTALS
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2. (U) ON MAY 27, THE SUPREME COURT OVERTURNED THE
CONVICTIONS OF THE REMAINING FOUR SUSPECTS TAGGED WITH THE
KILLINGS OF 27 TAMIL INMATES AT A DETENTION CENTER FOR
UNDERAGE LTTE CADRES IN OCTOBER 2000. THE INMATES INCLUDED
THOSE WHO WERE SEEKING ASYLUM FROM THE LIBERATION TAMIL
TIGERS EELAM (LTTE) AND THOSE SUSPECTED OF BEING LTTE CHILD
SOLDIERS, RANGING IN AGE FROM 10 TO 31. THE ATTACK OCCURRED
ON OCTOBER 24, 2000, WHEN INMATES AT THE BINDUNUWEWA
DETENTION CENTER IN BADULLA DISTRICT BEGAN TO COMPLAIN THAT
THEY WERE BEING HELD PAST THEIR EXPECTED DATE OF RELEASE.
AFTER THE COMPLAINTS ESCALATED INTO A PROTEST, A SHOT WAS
FIRED BY A POLICE OFFICER AND AN INMATE ATTACKED ANOTHER
POLICE OFFICER. THE FOLLOWING MORNING, VILLAGERS INVADED
THE CAMP AND CLUBBED, STABBED, AND BURNED INMATES ALIVE,
KILLING 27 AND WOUNDING 14. ACCORDING TO EYEWITNESS
TESTIMONY, THE POLICE OFFICERS DID NOTHING TO PREVENT THE
CROWD FROM ATTACKING THE INMATES AND SHOT SOME OF THE
INMATES TRYING TO ESCAPE THEIR ATTACKERS. FURTHERMORE, THE
POLICE REPORTEDLY PLACED TEAR GAS IN A NEARBY QUARRY SEVERAL
DAYS AFTER THE ATTACK, FAILED TO SUBMIT ALL PHOTOS TAKEN BY
A POLICE PHOTOGRAPHER AFTER THE INCIDENT, AND HID THEIR DUTY
LOGS IN AN ATTEMPT TO MASK THEIR INACTION AND MISTAKES.


3. (SBU) ON MARCH 8, 2001, PRESIDENT CHANDRIKA
BANDARANAIKE KUMARATUNGA APPOINTED A PRESIDENTIAL COMMISSION
TO INVESTIGATE THE BINDUNUWEWA MASSACRE TO DETERMINE THE
INDIVIDUALS RESPONSIBLE FOR THE ATTACK. THE REPORT ISSUED
TO THE PRESIDENT BY THE PRESIDENTIAL COMMISSION RECOMMENDED
THAT DISCIPLINARY ACTION BE TAKEN AGAINST THE FOLLOWING
POLICE OFFICERS FOR DERELICTION OF DUTY: A.W. DAYARATNE,
R.M.T.K. JAYANTHA SENEVIRATNE, S.J. KARUNASENA, N.G.S.
WALPOLA, T. RATNAYAKE, K.W.C.N. ABEYNARAYANA, Y.K.
ABEYRATNE, AND P. ABEYRATNE.


4. (U) IN JULY 2003, THE HIGH COURT OF COLOMBO CONVICTED
THREE VILLAGERS AND TWO POLICE OFFICERS OF PARTICIPATING IN
AN UNLAWFUL ASSEMBLY. CIVILIANS D.M.S DISSANAYAKE, M.A.
SAMMY, AND R.M. PREMANANDA WERE SENTENCED TO DEATH ALONG
WITH POLICE OFFICERS J. KARUNASENA AND T. RATNAYAKE.
ALTHOUGH IT WAS UNCLEAR WHETHER THE POLICE OFFICERS INDICTED
ACTUALLY SHOT THE INMATES, THEIR FAILURE TO ARREST OFFENDERS
AND PREVENT THE ATTACK LEGALLY MADE THEM PART OF THE
UNLAWFUL ASSEMBLY. ALL FIVE APPEALED THEIR CONVICTIONS TO
THE SUPREME COURT.


5. (U) ON MAY 27, 2005, THE SUPREME COURT OVERTURNED THE
COLOMBO HIGH COURT RULING, CITING A LACK OF EVIDENCE TO
CONVICT THE FOUR MEN. (SIMILARLY, THE SUPREME COURT HAD
ACQUITTED T. RATNAYAKE IN JULY 2004 DUE TO INSUFFICIENT
EVIDENCE.) EYEWITNESSES CLAIMING TO HAVE SEEN THE
CONVICTED MEN PARTICIPATE IN THE ATTACK RECANTED THEIR
STORIES IN FRONT OF THE SUPREME COURT, THUS THE SUPREME
COURT RULED THAT THERE WAS NO EVIDENCE THAT SUGGESTED GUILT
ON THE PART OF THE FIVE SINHALESE INDIVIDUALS. THE SUPREME
COURT ALSO FOUND THAT THE HIGH COURT JUSTICES HAD MADE
ERRORS IN HOW THEY ANALYZED THE WITNESSES' TESTIMONY.

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EXPERT OPINIONS
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6. (U) ON JUNE 2, HUMAN RIGHTS WATCH (HRW) ISSUED A PRESS
RELEASE URGING A REINVESTIGATION TO IDENTIFY THOSE
RESPONSIBLE FOR THE MASSACRE, INCLUDING TOP-LEVEL POLICE
OFFICIALS. THE HRW STATEMENT POINTED OUT THAT ALTHOUGH THE
PRESIDENTIAL COMMISSION CITED THE LOCAL POLICE COMMANDERS
DAYARATNE AND SENEVIRATNE FOR DERELICTION OF DUTY, THESE
OFFICERS HAVE NOT BEEN INDICTED OR PUNISHED. THE HRW
STATEMENT ALSO SAID THE GROUP IS CONCERNED THAT THE SUPREME
COURT DID NOT EXERCISE IMPARTIALITY, ACCUSING THE JUSTICES
OF BEING OPENLY HOSTILE TOWARDS THE PROSECUTION.


7. (U) ON MAY 30, THE ASIAN HUMAN RIGHTS COMMISSION (AHRC)
RELEASED A STATEMENT CALLING FOR THE RESIGNATION OF THE
INSPECTOR GENERAL OF POLICE (IGP) CHANDRA FERNANDO, IF HE
FAILS TO INVESTIGATE THE DERELICTION OF DUTY BY POLICE
OFFICERS IN THE BINDUNUWEWA MASSACRE. THE AHRC ACCUSES THE
SRI LANKAN JUSTICE SYSTEM OF BEING DEFECTIVE AND ENSURING
IMMUNITY FOR OFFENDERS. IN ADDITION, THE STATEMENT OF AHRC
ENCOURAGED THE SRI LANKAN PEOPLE TO SPEAK OUT AGAINST WHAT
IT DESCRIBES AS THE BIASED JUDICIAL SYSTEM.


8. (SBU) SALIYA PIERIS, ATTORNEY-AT-LAW OF THE SUPREME
COURT OF COLOMBO, TOLD A POLITICAL INTERN THAT HE BELIEVES
THE RULING IS FAIR BECAUSE OF A LACK OF EVIDENCE. THE
INVESTIGATION SHOULD HAVE BEEN MORE THOROUGH AND THE
INVESTIGATIVE UNIT SHOULD BE INDICTED, ACCORDING TO PIERIS.
WHILE HE BELIEVES DISCIPLINARY ACTION SHOULD BE TAKEN
AGAINST POLICE OFFICIALS, THEY SHOULD NOT BE CHARGED WITH
PARTICIPATION IN AN UNLAWFUL ASSEMBLY. THE POLICE HAD TRIED
TO CONTROL THE CROWD, ALTHOUGH THEY DID NOT EXPECT AND WERE
NOT PREPARED TO HANDLE THE FEROCITY OF THE SITUATION,
EXPLAINS PIERIS.


9. (SBU) ACHALA WENGAPPULI, STATE COUNSEL OF THE ATTORNEY
GENERAL'S OFFICE OF COLOMBO, TOLD POLOFF THAT HE AGREED WITH
THE RULING THAT THERE WAS INSUFFICIENT EVIDENCE FOR
CONVICTIONS. WENGAPPULI STATED THAT A RE-INVESTIGATION
COULD BE LAUNCHED TO TRY TO LOCATE THOSE RESPONSIBLE FOR THE
MASSACRE, BUT IT IS UNLIKELY THAT ANY NEW EVIDENCE WOULD
SURFACE. HE ALSO SAID THAT THE IGP, WHO HAS THE AUTHORITY
TO TAKE PUNITIVE ACTION AGAINST POLICE OFFICIALS, WILL NOT
EXERCISE HIS DISCIPLINARY POWER SINCE HE HAS NOT DONE SO IN
REGARD TO THIS CASE TO DATE. ANOTHER OPTION, WHICH
WENGAPPULI THINKS WOULD LIKELY BE MORE FRUITFUL, IS FOR THE
VICTIMS' FAMILIES TO BRING THE BINDUNUWEWA CASE BEFORE THE
HUMAN RIGHTS COMMITTEE IN GENEVA. (THE OPTIONAL PROTOCOL
ALLOWS THE HUMAN RIGHTS COMMITTEE TO CONSIDER VIOLATIONS OF
HUMAN RIGHTS EXPERIENCED BY INDIVIDUALS THAT ARE NOT
REDRESSED BY HIS OR HER DOMESTIC GOVERNMENT.)


10. (SBU) IN A JUNE 3 MEETING, RADHIKA COOMARASWAMY,
CHAIRPERSON OF THE HUMAN RIGHTS COMMISSION IN SRI LANKA,
TOLD A POLITICAL INTERN THAT SHE BELIEVES THE POLICE
OFFICERS ARE GUILTY OF UNLAWFUL ASSEMBLY IN THEIR FAILURE TO
STOP THE ATTACK. HOWEVER, SHE LAMENTED THE DIFFICULTY OF
SUCCESSFULLY PROSECUTING CASES AGAINST POLICE OFFICERS.
LIKE WENGAPPULI, SHE THINKS THE BEST OPTION IS FOR THE
VICTIMS' FAMILIES TO BRING THE CASE TO THE HUMAN RIGHTS
COMMITTEE TO SEEK COMPENSATION.


11. (SBU) M. REMADIOUS, ATTORNEY-AT-LAW AT THE CENTER FOR
HUMAN RIGHTS AND DEVELOPMENT, TOLD US THAT HE FEELS THE
POLICE SHOULD BE HELD ACCOUNTABLE FOR THE MASSACRE AND
SHOULD BE INDICTED. HE CLAIMS THERE WAS SUFFICIENT EVIDENCE
SINCE A POLICE PHOTOGRAPHER TOOK PHOTOS OF THE AFTERMATH OF
THE ATTACK. HOWEVER, NOT ALL OF THE PHOTOS WERE SUBMITTED
AND ONLY CUT-UP COPIES OF NEGATIVES WERE SUBMITTED FOR
EVIDENCE, HE ACKNOWLEDGED. REMADIOUS ASSERTS THAT IT IS NOT
POSSIBLE TO BRING THIS CASE BEFORE THE HUMAN RIGHTS
COMMITTEE BECAUSE IT IS AN "INTERIOR CRIMINAL CASE," AND
THUS THERE IS NO BASIS TO TAKE THE CASE OUT OF THE COUNTRY.
ALSO, HE NOTES THAT FIVE OF THE INMATES' BODIES WERE NOT
IDENTIFIED SO IT WOULD NOT BE POSSIBLE TO COMPENSATE THESE
VICTIMS' RELATIVES.


12. (SBU) RORY MUNGOVEN, HEAD OF THE FIELD PRESENCE OF THE
UNITED NATIONS HUMAN RIGHTS COMMISSION IN SRI LANKA, TOLD A
POLITICAL INTERN THAT THE BINDUNUWEWA CASE COULD BE BROUGHT
BEFORE THE HUMAN RIGHTS COMMITTEE. THE VICTIMS' FAMILIES
WOULD HAVE TO SHOW THAT ALL NATIONAL REMEDIES HAVE BEEN
EXHAUSTED AND THAT THE GSL HAS FAILED UNDER THE UNITED
NATIONS HUMAN RIGHTS COVENANT TO REDRESS THE GRIEVANCES OF
THE VICTIMS, MUNGOVEN EXPLAINED. HE PREDICTED THAT THE
HUMAN RIGHTS COMMITTEE WOULD FIND IN FAVOR OF THE INMATES.
IN THE PAST, THE GSL HAS FOLLOWED THE COMMITTEE'S
SUGGESTIONS, SO MUNGOVEN BELIEVES THAT THE GSL WOULD
COOPERATE AGAIN AND ISSUE COMPENSATION TO THE FAMILIES OF
THOSE MASSACRED.

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NORTH EAST SECRETARIAT ON HUMAN RIGHTS ISSUES APPEAL TO UN
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13. (U) THE LTTE-AFFILIATED NORTH EAST SECRETARIAT ON
HUMAN RIGHTS (NESOHR) ISSUED AN URGENT APPEAL TO THE UNITED
NATIONS HIGH COMMISSION ON HUMAN RIGHTS ABOUT THE
BINDUNUWEWA CASE ON JUNE 8. A STATEMENT BY THE NESOHR PUTS
FORTH ITS CLAIM THAT A PATTERN HAS DEVELOPED IN RECENT YEARS
IN WHICH THE JUDICIAL SYSTEM HAS RULED IN FAVOR OF SINHALESE
DEFENDANTS ACCUSED OF COMMITTING VIOLENT ACTS AGAINST
TAMILS. THE FEW INVESTIGATIONS OF HUMAN RIGHTS VIOLATIONS
HAVE YIELDED EVEN FEWER CONVICTIONS OF POLICE OFFICERS, THE
NESOHR CONTENDS IN THE PRESS RELEASE.

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COMMENT
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14. (SBU) IT IS HARD TO BELIEVE THAT SUCH A HORRIFIC
INCIDENT, WITH SO MANY PARTICIPANTS AND SO MANY SURVIVING
VICTIMS, HAS PRODUCED NO RELIABLE EYEWITNESS TESTIMONY OR
EVIDENCE TO CONVICT THE PERPETRATORS. EVEN IF THE POLICE
DID NOT PARTICIPATE IN THE ATTACK, THE POLICE OFFICERS IN
CHARGE WOULD SEEM TO BEAR SOME RESPONSIBILITY FOR FAILING TO
HALT THIS ATTACK. THE FAILURE BY THE GSL TO PROSECUTE THESE
GRISLY MURDERS WITH THEIR OBVIOUS ETHNIC OVERTONES WILL DO
LITTLE TO PROMOTE TAMIL COMMUNITY CONFIDENCE IN GSL
IMPARTIALITY.
LUNSTEAD