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UTHR (Jaffna) Special Report No: 12

UNIVERSITY TEACHERS FOR HUMAN RIGHTS (JAFFNA) SRI LANKA.

Special Report No: 12.

Date of release: 28th April,  1999.
 
 

Gaps in the Krishanthy Kumarasamy Case: Disappearances & Accountability
 
 

Introduction and Summary

Torture and extra-judicial killing became endemic among the Sri Lankan Armed Forces with their politicisation from 1979 to a degree unknown previously. This was when the Armed Forces were used as a substitute for a political process which the situation demanded. The 1979 operation in Jaffna to clean the North of terrorism was undertaken against the better judgement of the Army Commander and other senior officers. The 'Weli Oya' operation in 1984 to change the ethnic character of an area by third degree methods was a blatantly political operation. There were rewards for individual officers who pandered to the vanity of the rulers by undertaking to do the imprudent, the immoral and the unlawful. The Armed Forces suffered, created virulent rebels after their own image, and created in turn a rationale for their own prodigious expansion. In time expressions like 'crush the eggs' and 'grind to powder' became well
understood jargon within the Army.

From about 1992 in the wake of international pressure and sections of the Armed Forces who felt the need, there were attempts to straighten out their image with regard to Human Rights. An important event was the dialogue between the Government and Amnesty International in late 1991. Among the undertakings given by the Government was to issue receipts for arrest as a safeguard against disappearance. Although this undertaking was generally honoured in the East during 1993, the serious shortcomings were also evident. The failure to issue a receipt was not punishable. It was also about the same time, in 1992, that the Human Rights Task Force (HRTF) was established as a monitoring body. Its two reports prepared by Justice J.F.A.Soza covering the period August 1992 to August 1994 bear testimony to the competent and dedicated work that was done.

With the election of the PA Government in 1994 there was a new emphasis on Human Rights, and an optimism that we had turned the corner. The new
government signed the Convention Against Torture and in 1996, the  Optional Protocol to the International Covenant on Civil and Political Rights. But the optimism received a serious setback with the onset of  disappearances in Jaffna during 1996, following a suicide bomb attack which killed Jaffna's Town Commandant. When paranoia took over, the individual civilian had no safeguards that worked.

The rape and murder of Miss.Krishanthy Kumarasamy and the murder of  those who went in search of her, by its very horrifying nature, created a demand for its investigation and trial.  On 3rd July 1998 death sentences were passed on six service personnel, who in turn made disclosures of mass graves in Jaffna. While the trial does credit to the Government by being the first of its kind leading to a conviction, many glaring aspects of the case did not receive attention.

While we were about the first to sound the public alert on disappearances in Jaffna, we had subsequently said little on the Krishanthy Kumarasamy case as  the facts were brought out by various organisations and activist groups and  were widely written about.

In this report however, we explore leads in the trial that were not followed up, the relation of the crime to disappearances in Jaffna, and how well our structures are geared to fight the abuse of human rights.

There  were several fault-lines in Jaffna. Everything was controlled by the Defence Ministry, including the transport of journalists to Jaffna. There was too much complacency. The newly promoted generals in charge of 51 and 52 divisions controlling Jaffna had earned notoriety for the role they played from 1988-1990 which was the worst period of extra judicial killing.

The suicide bomb attack in Jaffna on 4th July 1996, though not in the least unexpected, resulted mainly from complacency. The system went into a panic and Jaffna was blacked out to journalists. The Defence Ministry ran the show. The safeguard of receipts for arrest remained a dead letter. The HRTF was virtually told to stay out of Jaffna until things improved.

The Krishanthy Kumarasamy murder took place in the context of indiscipline and lawlessness sanctioned during that period by the Army top brass. The complicity of the Defence establishment could hardly be gainsaid. By artificially isolating the convicted men from the system, the case against them has been made weak and unconvincing. It again strengthens the argument against capital punishment : Those who are sentenced to death are too often scapegoats from the humbler orders of society.

Take what we reliably understand was the context in which Krishanthy's murder took place on 7th September 1996. Pungankulam army camp was a main camp east of Jaffna City that controlled Chemmani point where the murder took place. Persons detained over a large area were first brought to Pungankulam camp, where a decision was taken what to do with them. Many were then sent to the Intelligence Camp in Ariyalai East, which is quite near Chemmani, the whole comprising a largely uninhabited area. Here the prisoners were tortured, and we are yet to hear of survivors. On regular occasions the men at Chemmani point would be alerted during the night. The naked corpses of detainees tortured and killed at the Intelligence Camp were then taken to Chemmani in a vehicle, for the men at that point to assist in the burial. This context behind the Krishanthy Kumarasamy murder trial was staring at us from behind a thin
veil which no one dared to rend. The defence attorneys prevented the men on trial from testifying, forcing them to wait till the end. It for example came out during the trial that a complaint had been lodged at Pungankulam camp the very next morning after Krishanthy's abduction. On 16th September, just after the matter was raised in Parliament, the Brigadier commanding Jaffna Town had asked the Police to investigate, surely, suggesting a cover-up. There was indeed more than this particular crime involved. To those who knew the operation at Pungankulam, everything was plain.

In November 1996 President Kumaratunge appointed a Board of Inquiry chaired by a senior Defence official with other senior armed forces officers to inquire into complaints about missing persons in Jaffna. About the only concrete matter for which they claimed credit was to ensure the issue of receipts for arrest in Jaffna - a standing obligation from 1991! As to what they really discovered, and what they told the President that her chiefs had hidden from her, was not
revealed.

The revelations about the Chemmani graves were made in Court on 3rd July '98. The investigation into the mass graves was handed over to the Human
Rights Commission (successor to the HRTF) by press notice from the Presidential Secretariat about two weeks afterwards. The HRC wrote to Mrs. Mary Robinson, UN High Commissioner for Human Rights, seeking the help of her office (OHCHR) in the investigations. A reply was received from the OHCHR with an offer to help, provided the Government would agree to the basic technical requirements for them to do the work. This was communicated to the President's office in September and reminders have been sent. We understand that there has been no response.

While the OHCHR has been kept in suspense along with the HRC, it looked as though from March the matter was being handled by the AG's department
and the Police. There is ample reason to believe that both these institutions are politicised, and the most one could expect from them is a damage limitation exercise. One only needs to look at the catalogue of cases where the evidence was misled, bungled or simply not proceeded with. In his second HRTF report, Justice Soza drew attention to two important cases - the disappearances of 158 refugees from Eastern University and the massacre of 184 persons including 68 children at Sathurukondan - both inquired into by him and the findings recorded in his first report ; where no action had been forthcoming from the AG's
department or the Police. That was now more than five years ago.

We need also to face the fact that we have no real deterrents against the worst human rights abuses. What we have, do not work when they are most needed. The HRTF could not establish an office in Jaffna in 1996. The ICRC could be ignored when needed. Despite all the Commissions no senior officer has been punished. The President asks the Human Rights Commission through the Press to investigate the Chemmani graves and then sends it into limbo by failing to reply to their letter for months.

As  to what influence the appointment of the Board of Inquiry in November 1996 had on the Army in Jaffna, we have given a fairly routine torture case that took place in Manipay, another intelligence camp, in January 1997. The victim was among other things drilled through the toes, hooks were inserted by which he was hung, and beaten. A nail was inserted into his hand (removed 20 months later), and was beaten on a heel with a spiked board. Probably owing to the ICRC finding out, he was handed over to the Police, was taken to Anuradhapura court hardly able to walk, issued a detention order for 3 months, and was produced in court in Colombo, where he was granted bail. He was completely innocent.

At no point was a move made by the Police, the Courts or the Prisons to ensure that he had appropriate medical care. All lent their complicity to covering up a victim of grievous torture. The system nullifies any benefit to the citizens from Sri Lanka becoming a signatory to the Convention Against Torture.

This will remain the case until, at least as a temporary measure, legislation is introduced to give a body such as the Human Rights Commission, the power to impose penalties and place it on an offender's record.

There is not much point in an investigation of the Chemmani graves where its credibility becomes a subject of contention. For the Tamils themselves there are other issues at stake. There are several mass graves in the North-East that are the result of internal repression. An investigation into these is morally and politically essential for the Tamils in order that they could find their feet. These are graves not left behind by a brutalised state-army, but are monuments revealing the nature of their so-called liberators. If the credibility of the investigation into mass graves left behind by the state-forces becomes suspect, the investigation into the other graves would also become impaired for all time.

The Government has nothing to gain by trying to limit and minimise the damage from an investigation into mass-graves left behind by the State forces. It would be far better for everyone if the offer of help from the UN High Commission for Human Rights and other interested organisations with experience is accepted. ALL mass graves, both known and those whose existence will be revealed, must be investigated without leaving any room for criticism or bias. There are then bound to be some healthy and interesting developments.
 

 
Gaps in the Krishanthy Kumarasamy Case: Disappearances & Accountability
 

1. Disappearances in Jaffna 1996

Late morning on 4th July 1996, Minister Siripala de Silva was due to open a new Building Materials Corporation outlet in Stanley Road, Jaffna. A little before the opening a blue scooter with a pillion rider turned from Ariyakulam Junction into Stanley Road away from town. The scooter then turned into a lane, bypassed the railway station, went through into Martyn Road, then along Chapel Street, got into Jaffna Bazaar through the Regal Theatre lane and came into Stanley Road through a lane near the old Power House. Those who saw the look on the faces of the riders knew unmistakably who they were. They had got to the place of the opening ceremony avoiding all the Army check points there were at that time.

The Minister came to the venue with the Town Commandant, Brigadier Ananda Hamangoda. The crowd had been kept at a distance. At this point the popular Commandant made a move which cost him his life and preluded events that left a dark cloud hanging over Jaffna. He smilingly gestured to the crowd to come nearer. A young girl wearing a suicide kit ran forward and exploded herself, killing several people. The Minister had a narrow shave. The two men on the scooter were evidently the ones who came to signal the final instruction to the bomber.

The Army which had been complacent up to this point, began a series of mass  arrests. If explicit orders were not given, a signal had come from high up to play rough, with a corresponding loosening of discipline. Apart from these arrests which were not being acknowledged, following the LTTE overrunning Mullaitivu army camp on 19th July, this loosening of discipline led to random reprisals. The victims were often travellers going past lonely check points or persons taken for questioning. Such persons were taken into camp and mercilessly assaulted. Several no doubt died. Some had amazing escapes - such as the youth from Kerudavil thrown into a covered septic tank with a cut in the neck.

Several of these testimonies were brought out by us in Special Report No. 7 issued at the end of August. This which was picked up by news agencies, sounded the first public alert on the disappearances in Jaffna. The following is an excerpt from Reuter (2.9.96 - Island 3.9.96) : "A Sri Lankan human rights group accused the government on Monday of covering-up extra-judicial killings and abductions by the army in northern Jaffna, former stronghold of Tamil Tiger rebels. The rights group, the University Teachers for Human Rights Jaffna, also accused (LTTE) rebels of carrying out assassinations of those promoting peace and rehabilitation in the peninsula.

"Though security forces showed a refreshing level of care in Jaffna, cases of human rights violations continue to be covered up ....  Cases of unauthorised arrests, beatings, torture and killings by security forces continue and have become notably worse after Mullaitivu", said the report by the group. A military spokesman declined to comment, saying : "We don't want to comment just because someone is making allegations"...."

Reuter also observed that the report came less than a week after the cabinet approved the Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) that allowed Sri Lankans to complain directly of violations, and appeal, to the United Nations Committee on Human Rights. This suggested that what was happening in Jaffna then was not related to government policy.

What brought matters to a head was the Krishanthy Kumarasamy incident a few days later on 7th September. The 18 year old student from Chundikuli Girls' College had been cycling home to Kaithady at noon past the isolated Chemmani check-point, after sitting the A Level Chemistry paper. She was detained at the check-point and this was seen by a neighbour who alerted her mother Rasammah Kumarasamy, a school vice-principal. Mrs.Kumarasamy had gone to he check-point with her son Pranavan Kumarasamy and her neighbour Sithamparam Kirupamoorthy at 3.00 PM. All four went missing. The matter was raised in Parliament as a question by Joseph Pararajasingham MP on 13th September. Deputy Defence Minister Anuruddha  Ratwatte promised to inquire and give a reply.

Despite the fact that the mother and the two who accompanied her had remained at the check point from 3.00 PM till quite late in the evening and had been seen by several passers-by, the Army first denied the arrest. About 10th October, nearly a month later, when the Hindu correspondent, Amit Baruah, raised the matter at a press-conference, Ratwatte continued to maintain that there were no violations in Jaffna. There is little doubt that in Ratwatte's mind the plan was to sit it out by sticking to bland denials - the practice of the State since the passage of the PTA in 1979. But in Jaffna General Janaka Perara, an
intelligent officer who had maintained good public relations, was feeling the heat. He maintained that he wanted to get to the bottom of It. Matters had been made worse by the disappearance of a second girl, Rajini Velauthapillai (23), at a check-point in Kondavil on 30th September.

Given  Ratwatte's position and his decisive influence in security matters, it is certain that the decision to conduct a full investigation was taken by President Kumaratunge, who had till then not responded publicly on the reports of violations. By 22nd October arrests had been made in both cases. The Krishanthy case became a focus of agitation by women's groups in Colombo, and went into a much publicised trial in the Colombo High Court, leading to unprecedented death sentences being passed on 6 service personnel on 3rd July 1998. We will take this up later.

The first indication that several hundreds of people may be missing, came in the Uthayan of 15th November, with a report that the Citizen's Committee for Peace and Harmony, chaired by the Roman Catholic Bishop of Jaffna, had presented General Perera with a list of 230 missing Persons, 35 of whom were students. It must also be said that the arrests made over the two cases above enabled the Army to retain a considerable easure of confidence. The Bishop of Jaffna was later quoted in the press as saying that the Army was doing a difficult job well, and that there had been no major violations since November. It was then still hoped that most of the missing persons would be released.

However by March 1997 disappearances in Jaffna had become a much publicised issue around the world. Amnesty International released a list of 676 disappeared. This number was implicitly substantiated before the UNCHR by Ambassador Nakkawita of Sri Lanka in March 1997. At the same time the Justice and Peace Commission for the Roman Catholic Diocese of Jaffna, and the Guardian Association for the Disappeared in Jaffna, both had lists of around 360. So far no proper check has been done to say where things stand. By the middle of 1997 any hope of finding the disappeared had largely vanished.

In November 1996 in response to mounting complaints of disappearance in Jaffna, President Kumaratunge had directed a Board of Inquiry to be appointed to go into the matter. The Board chaired by the Additional Secretary/Defence was largely made up of very senior officers from the Armed Services and Police. The Board had 730 distinct complaints, and held 4 sittings in Jaffna from January to August 1997. According to a statement by the Board which appeared in the Daily News of 4th October 1997, it had recorded statements from 367 complainants and 129 witnesses. About 170 of those summoned failed to turn up. In about 25 cases the GA Jaffna was informed by relatives that the disappeared persons had returned home. The Board, it said, had visited places of
detention, examined the records, traced 180 missing persons and informed their next to kin.

The statement speculated that some of those missing may have been forcibly enlisted by the LTTE or had left Jaffna. This still left a large section of about 525 persons unaccounted. The Board also took credit for ensuring the issue of receipts in respect of detained persons, so that the number of complaints during the first 8 months of 1997 declined to 38.

There naturally is scepticism about some these claims. The President is the Commander-in-Chief of the Armed Services, and the mandatory issue of receipts in response to proposals made by Amnesty International has been in force from 1992. Why should a Board appointed by the President take credit for the issue of receipts in Jaffna after November 1996? Rather, the Army top-brass in Jaffna should have been held answerable for the almost  sinister failure to issue receipts during those crucial months of 1996.
 
The question of receipts is a key question that needs to be answered. Army officers in Jaffna then knew about the need to issue receipts. After all many complainants at the Town H.Q. were told, "If we arrested the person we would have issued a receipt". In conjunction with this were the delays in the establishment of the Human Rights Task Force office in Jaffna. Even before our report appeared in late August 1996, the ICRC and GA Jaffna should have routinely informed the President about the large number of missing persons. In fairness to herself, the President must explain what steps she took then, particularly to ensure immediately that receipts are given in the event of arrest. It will then become clearer who is responsible. In retrospect the failure to issue
receipts was deliberate. It would also have been far better for the image of the Army and only air by General Srilal Weerasooriya, who was commander of the Forces in Jaffna until early 1997, if he was cleared of blame for disappearances, before being made army commander.

More seriously, before the Government could claim credit for a better record on Human Rights with substance, it must show genuine accountability. The North-East Disappearance Commission report issued over a year ago shows how easy it is for the Armed Forces to evade responsibility. The Commission forwarded the complaints to the Army Commander, replies often took the form 'not shown on our records', 'records missing' or records in effect 'destroyed under circumstances beyond control'. The matter simply ended there. Contrary to known facts, it may be held sometime in the future that there were no disappearances or that the persons concerned had gone elsewhere. The Commission mentioned was among those appointed by President Kumaratunge and covered the late 80s and early 90s, dealing mainly with the former Eastern Province. These disappearances took place under the former regime.

The present Government was pledged to better accountability. The Board of Inquiry appointed for Jaffna has done little more than prepare a list of complaints and check lists of detainees maintained by senior officers. And among officers and gentlemen one does not accuse another of such things as torture and murder. Thus the gravity of the serious lapses is ignored, the families are fobbed off with a pittance for compensation and promises to go on looking for the missing. Thus impunity remains a fact of life. Before we examine the Krishanthy Kumarasamy case, which we believe has a deeper significance for the
disappearances in Jaffna, we take a look at the challenges faced by the Army in taking over Jaffna. 
 

 1.1 Behind the Disappearances

The population of Jaffna had been tightly controlled by the LTTE for
nearly 10 years, thousands had been compromised with the LTTE and many
though unwilling were obliged to do favours for the LTTE. In Special
Report No. 10 of last year, we gave an instance of a woman, who as the
LTTE pulled out of Vadamaratchi in April 1996, was with her sisters, and
children of a sister, installed in a house in Nelliady. The house had a
built-in secret chamber to accommodate infiltrators. Among the tens of
thousand civilians who returned to Valikamam in April 1996, there were
certainly many youths, apart from infiltrators, who had been associated
with the LTTE, and had deserted or had left the group after having
received training.

The LTTE then started contacting them and applying pressure on them to
help them. We give the story of one youth that is not untypical. This
youth's marriage ran into trouble and this had much to do with the LTTE
making an entry into his life. This youth had no ideology. It was in his
very nature to help and be loyal to anyone who was kind to him.
Individual operators in the LTTE exploited this. When the Police looked
for him in Colombo in the early 90s, he escaped to Jaffna and did odd
jobs for the LTTE. If the LTTE duped him, so could others. He approached
a man who had worked in Anuradhapura on behalf of the LTTE and offered
him money to move to Anuradhapura and open a radio repair shop there.
This was because the Army command had been moved there.

The man contacted had already decided to leave Jaffna with his family
and go abroad, but was held back by the LTTE's rigid and punitive pass
system. He agreed to the proposal, and the youth got passes for his
entire family to leave the North, and also the money. The man crossed
over to the South, left his family in a rural Sinhalese area where he
had friends, and used the money to go to Canada.

The youth's mother who was a devoutly religious woman had been pleading
with him to break off all links with the LTTE. One day in 1993 the youth
was at Nochchimoddai, the final LTTE check-point north of Vanuniya. The
Army launched a thrust into LTTE territory, and this youth with several
other civilians found themselves among soldiers. The Army questioned
them briefly, but left them and withdrew the same day. This event among
others caused the youth to heed his mother's advice. He broke with the
LTTE and devoted himself to the Pentecostal Mission, with whom he
thereafter lived most of the time. He did much to look after Pentecostal
brethren displaced from Jaffna during the Exodus. But as the LTTE was
pulling out of Vadamaratchy in April 1996 in the wake of the Army's
advance, LTTE men called on this youth  a few times at nightfall.

Subsequently the youth at the invitation of Pentecostal brethren from
Jaffna, moved to the Mission in Jaffna. A relative asked him to mind a
shop in town and left for Colombo. Life went on for the youth between
the Mission and the shop. One day in mid-July the youth felt that he was
being shadowed and felt very nervous. About 6.00 PM on 15th July 1996,
he was returning to the Mission from the shop along with a Pentecostal
boy who helped at the shop. The boy, Manuelpillai Prabhakaran, never had
any links with the LTTE. Both were detained at the Rasavinthottam
check-point on Hospital Road.

A relative, Mr.S.Philip, who witnessed the arrest informed the boy's
mother who lived on Temple Road, 200 yards from the Checkpoint. The
mother, Manuelpillai Rajeswary, immediately went to the check-point. The
arrest was acknowledged. But she was asked to go home with the promise
that her son would questioned and released. This was not to be. About
8.00 PM that night, according to residents near the check-point, the
detainees were loaded into a truck and driven away. The very next day
Rev.A.S. Dawson of the Pentecostal Mission raised the arrests with the
Army's Town H.Q.. We understand he was told that they would be released.

On 29th October 1996 Major Punchibanda, Secretary for H.Q. Palaly,
replied to a written representation by Rev. Dawson, "Your appeal is
forwarded to H.Q. 51st Division, Jaffna." The latter was headed by
General Janaka Perara.

In a letter  dated 6/1/97 to the mother from the President's office
stated : "I have been directed by Her Excellency the President to
acknowledge your letter of 19/12/96 and to inform you that it has been
referred to the Commander of the Army, AHQ, for necessary action." Later
in a letter dated 9/5/97, H. Banagoda, Secretary to the Board of Inquiry
asked the mother if her son had returned home.

It was a rather funny game of letters where a system that was part of
the State had arrested a boy, about which there was no doubt. Then the
mother was called upon to tell the system if it had released her son.
After the game is dragged on and the mother is tired, she is likely to
be offered a little money. The Law, the respect for which alone upholds
the legitimacy of the State, had been rendered meaningless, swamped by
the systematic evasions and gentlemanly sweet nothings of the ruling
class.
 

Before moving on, we will give some more instances to point to the role
of check-points in the disappearances that took place then. Other
instances can be found in Special Reports 7 and 9, and Bulletin No. 13.

Following the return of civilians in April 1996, a scholar who was known
for helping those in need, was asked by two well meaning ladies to keep
with him Kuhanesan, an undergraduate. The boy's family was originally
displaced from Punnalaikkadduvan. The boy himself was helpful and
accommodative. The scholar discovered later that the story he was told
about the boy's brother having been killed by the LTTE was not true.

On 30th August 1996, the boy went with two empty petrol cans to obtain
kerosene oil which was then rationed. He was last seen at the check
point at the Temple Road - Hospital Road junction. The scholar went to
the Town H.Q. and complained about the incident to the officer in charge
of dossiers. On a later occasion the scholar asked this officer whether
he should continue his search. The officer replied, "Stop your search".
The scholar told him that the boy was of good conduct and character. To
this the officer replied, "He may have been sent to kill you!".

A day or two later at the same check-point, a soldier detained a young A
Level student, a convert, who was going back from Arul Ashram on Temple
Road. He was gagged and beaten. Women outside who heard muffled cries of
'Jesus, Jesus' coming from inside went crying and told old Fr.Celestine
of the Ashram. In the meantime more cloth was stuffed into the boy's
mouth and the beating continued. Fr.Celestine arriving at the sentry
point told the soldiers in Sinhalese to release the boy. The priest was
asked to  go away. Then an officer arrived, pulled up the soldier
beating the boy, saying, "You drunken bugger, you beat innocent people",
and the boy was sent away.

In Report No. 7 of August 1996, we reported the disappearance on 17th
July 1996 of Ronnie Arichunan, a postal worker married 2 years and
expecting his first child. He had left the LTTE in 1991 and was  an
active worker in the Zion Church. He is believed to have been taken in
at a sentry point while travelling on duty between Neeraviady and
Navanthurai sub-post offices. We later learnt that Arichunan's
disappearance followed the detention of another postal employee
suspected of opening mails for the LTTE. If Arichunan was doing anything
at all for the LTTE, it was certainly something minor and under duress.

The relatives of those arrested were told nothing, and were driven from
pillar to post and kept writing letters. For the State it was a cruel
game of procrastination, calculated to hide the extent of the
disappearances. Some looking for their own relatives supplied local
groups monitoring the disappearances with information pertaining to
others which they chanced across :

Logeswaran Cheren was arrested on 15.7.1996 at Ariyalai. His mother saw
him the following morning at Pungankulam army camp. Thereafter nothing
was heard of him. As part of a pointless public relations exercise, some
in search of missing relatives were invited to Palaly army camp. An
official named Asok Silva produced two lists of 70 names. Kaushalya, who
went looking for her brother Ajan, said later that she saw Logeswaran's
name on one of the lists.

An A Level student detained at Palaly and released through the Mallakam
courts said that he had seen another detainee Selvarajah Partheepan at
Palaly,

The mother of Sinnarasa Uthyakumar was told by Poopalasingam Vigneswary,
that Kandiah Sivasubramaniam of Main Street, Trincomalee, saw and spoke
to Uthayakumar en route to Anuradhapura via Trincomalee.

Such bits of information were often straws in the wind, which, while
keeping people in hope may not lead to anything.

In our previous reports mentioned, we have given several cases of
arbitrary killing and assault at check points during those months of
1996. The scene was thus set for so horrifying a tragedy as the
Krishanthy Kumarasamy murder.

 2. The Krishanthy Kumarasamy Murder & Trial

The trial began in November 1997 in the High Court at Hulftsdorp,
Colombo. The Bench for the Trial-at-Bar comprised judges Nimal
Dissanayake, Gamini Abeyratne and Andrew Somawansa. The eight accused
comprised soldiers and a reserve police constable who were : Corporal
Somaratne Rajapakse (1st), Mudianselage Jayasinghe (2nd), RPC Pradeep
Priyadharshana (3rd), Priyantha Perera (4th), Wijayananda Alwis (5th),
Muthu Banda (6th), Lance Corporal Mudianselage Jayatileke (7th),
Indrajith Kumara (8th) and Pathiranalage Nishantha (9th).

Nishantha, early in the trial, and Muthu Banda, at the end of the trial,
were released for the lack of evidence of involvement. Alwis died in
prison of meningitis amidst accusations of neglect by the prison
authorities. Apart from circumstantial factors, the evidence comprised
confessions made to the Military Police which led to the location of the
corpses, along with the testimony of RPCs P.A.Samarawickrema and
A.H.Nazaar who turned crown witnesses. The Bench decided to accept the
confessions made to the MP. The verdict was delivered on 3rd July 1998.

We now give a sketch of the incidents based on what transpired in Court.
Krishanthy as mentioned was arrested by Rajapakse at noon on 7.9.96. At
2 PM Samarawickrema met Rajapakse in the rest room. Since he could speak
Tamil, Rajapakse asked him to get some information from an LTTE
activist. Samarawickrema saw a girl in the bunker with her hands tied
and her mouth taped. When questioned after removing the tape, she gave
her name as Krishanthy Kumarasamy, student at Chundikuli Girls' College.
Corporal Rajapakse asked her to shut up as her voice could be heard by
those on the road passing the check point.
At 3.00 PM Krishanthy's mother Rasammah (59) came to the Chemmani Check
point with her son Pranavan(16) and neighbour Kirubamoorthy (35).
Rajapakse made a pretence of inquiring over the walkie talkie if a girl
had been detained and denied that such a thing had happened. Rasammah
had come to know of the abduction after Gananathan, a neighbour who
witnessed it, had told Kirubamoorthy. Having waited till late, when
Rasammah turned to go, Rajapakse detained them, saying "You cannot come
and go as you like". Samarawickrema said that he had reported this to
Corporal Asoka who was in charge of another check point more than 500
yards away on the Kandy Road. This is an open area with a bo-tree
junction, from where the Kandy Road goes east towards Chemmani Lagoon
and Kaithady where Krishanthy lived. Between the junction and Chemmani
Bridge lies an abandoned saltern where there is the check point where
Rajapakse was. From the same junction going south-west is the section of
the A-9 trunk road (the Kandy Road), leading to Jaffna Town through
Ariyalai. Going west from the junction is the road leading to Nallur
(Chemmani Road). The main camp controlling Chemmani was in Ariyalai in
the Maniam Thottam Road, the road turning left towards the sea, about a
mile towards Jaffna from the bo-tree junction. This was an intelligence
camp to which detainees were brought for inquiry. Lt Thudugala who
controlled the Chemmani check-point was based in this camp at Ariyalai.

This camp controlled several sentry points in the open fields about
Chemmani. Not far from the bo-tree junction along Chemmani Road also
lies a cremation ground used by Hindus. Except for travellers between
Thenmaratchy and Valikamam by day, the area is totally uninhabited.

According Samarawickrema, he then went to Corporal Rajapakse with
Corporal Asoka and asked him to hand over the three [four?] detainees.
Upon Rajapakse refusing, they went back to their posts. This was about
8.00 PM. The orgy of crime began near the saltern after Priyadharshana
whistled a signal and received one in return apparently from others
watching the road.

According to Nazaar who had been asked by Priyadharshana to follow him,
the girl was on the ground with several others standing by on the
moonlit night. Nazaar was then asked to wait on the road. 10 minutes
later Priyadharshana told him, "We have finished, you go if you want".
When Nazaar went Krishanthy cried for water, which Nazaar gave from a
bucket of water. When he asked her in Tamil if she had links with the
LTTE, Krishanthy replied that she had nothing to do with them and had
passed her G.C.E. O Levels with 7 distinctions. Then according to
Nazaar, Jayatileke (7th accused) abused him in foul language for talking
to her and chased him away. Nazaar described Krishanthy as being filled
with sorrow. She later pleaded with her 6th rapist to let her rest for 5
minutes.

Earlier, according to Rajapakse, he with Perera (4th), Indrajith (8th)
and Jayatileke (7th) had strangled the two men and buried them. Pranavan
had given his wrist watch, and both men their identity cards, to
Rasammah as they were meekly led away to be killed.

According to Rajapakse's confession, those besides him who raped
Krishanthy were Jayasinghe (2nd), Pradeep (3rd), Jayatileke (7th),
Indrajith (8th) and Nazaar. Krishanthy was then killed and buried, as
was her mother. The mother's gold chain was later recovered by the
police from Rajapakse's brother and sister. Rajapakse (27) was a married
man.

In making the final address from the Bench on 3rd July 1998, Justice
Abeyratne said : ".... in view of the strong evidence placed before it,
deterrent punishment had to be imposed. The court cannot ignore the
barbaric and brutal assault made on a school girl and the violence
perpetrated on four people by committing their murder..... the accused
held responsible positions in the Armed Forces and Police, but they
attacked this young girl like a pack of savage animals".

Sentences were passed on six of the accused :

Rajapakse (1st) : 10 years RI (Rigorous Imprisonment) and Rs.50,000 fine
for abduction, 20 years RI for rape and death for the murder of all
four.

Priyadharshana (3rd) : Same as above, but murder only of Krishanthy.

Jayasinghe (2nd) : 20 years RI and death for abduction, rape and murder
of Krishanthy, Pranavan and Kirubamoorthy.

Priyantha Perera (4th) : 20 years RI and death for abduction, rape and
murder of Krishanthy and murder of Pranavan and Kirubamoorthy.

Jayatileke (7th) : 20 years RI and death for rape of Krishanthy and
murder of Rasammah.

Indrajith (8th), absconding : 20 years RI and death for murder of
Kirubamoorthy and Pranavan, and warrant for arrest.
 

2.1 Who was guilty of Krishanthy's murder

It was a perfect trial and quick by Sri Lankan standards. Justice within
two years of the crime. The speed and the sentences, one suspected, had
something to do with the political establishment wanting it that way.
One could think of several trials dragging on for close upon 10 years
involving crimes attributed to security personnel. These seem to go
according to the saying 'Justice delayed is Justice denied'. One could
drag on questions about disappearances for years. But something so
graphic and horrifying as the Krishanthy murder, if unaddressed, would
have done immense harm to the Government's tenuous credibility. The
sentences were met with relief and praise. But there were clearly some
troubling issues the court proceedings nor the judges had addressed. The
process failed to make any connecting links between the hundreds of
disappearances in Jaffna during that period and the crimes before the
Court, raising the suspicion of a damage control exercise. This was
underlined by the convicted men telling the Court after the verdict that
they on orders buried several hundred bodies in Chemmani and at other
places.

About the first to raise some of the key issues that had not surfaced
was the Defence Correspondent of the 'Island', writing in the Mid-Week
Review of the paper on 8th July 1998 : "[The verdict] runs contrary to
previous courts martial proceedings passing lenient sentences on
officers and men... Perhaps most importantly, the Army's top brass must
come clean and accept their part of responsibility in human-rights
abuses. Starting from the Army Commander himself, down to the lowly
second lieutenants, they should accept that most of them turn a blind
eye to human-rights abuses, although it is their sworn duty to uphold
the law...

"... Where was the lieutenant in charge of the platoon? The captain in
charge of the company? The major in charge of the unit? The lt. colonel
or colonel in charge of the battalion? Although they weren't involved in
kidnapping, rape and murder, didn't they know what was going on and turn
a blind eye?

" Even if they didn't know which seems highly improbable, the officers
bear some responsibility for the actions of their men. The charge
brought against the officer in the Kokkadichcholai case [June 1991],
should also apply to the officer in the Kumarasamy incident.

" When the incident was first reported the Army conducted a cursory
investigation  and announced that the four civilians had not been
detained at the check point, despite the fact that dozens of civilians
had witnessed it. As far as the Army was concerned, that was the end of
it all. It was only when human rights organisations brought pressure to
bear on the President and she ordered a thorough investigation, that the
bodies were found and the culprits arrested.

" Overshadowing the entire case is the fact that every single one of the
condemned men stood up in Court and said they could show where up to 400
bodies of Tamil civilians were buried in mass graves in the Jaffna
Peninsula and that the officers knew what was going on ... What most
army field officers know by now is that this [i.e. violations] was one
of the biggest causes in the growth of the LTTE and is directly
responsible for the fanatical attitude of Tiger cadres ..."

We shall now go into certain aspects of the case.

2.1.1 How the Army top brass handled the case
 
Krishanthy's relatives and friends had taken the following steps :

On the very next morning (8.9.96) Buvaneswary Arumugam, a teacher on the
staff of Rasammah's school went with her brother and made a complaint to
a captain (probably the PRO) at Pungankulam Camp in Ariyalai, which came
under the Jaffna Brigade (512) and had a close link with Lt.Thudugala's
platoon commanding Chemmani. The officer promised to look for the
missing.

Another relative Kodeeswaran, a post master from Jaffna, when told about
the matter the following morning, went to Kaithady army camp and
complained to Captain Perera. When offered a written complaint, the
Captain said that they had not arrested the missing.

As far as is known the Army did little. No one apparently complained to
the Police because the Army  was the controlling power in Jaffna. The
Police had in practice no independence then.

What the Jaffna Brigade Commander, Brigadier Gamini Jayasundera, did is
most revealing. The question of the missing four was raised in
parliament on 13.9. and it was reported in the `Sunday Island' on 15.9.
One way or the other the query in parliament would have come to
Jayasundera. The normal channel would have been through the Army
Commander, through General Weerasooriya, through General Perera.

As testified to Court by Upali Senerath, then Chief Inspector, Jaffna
Police, Brigadier Jayasundera telephoned him on Monday 16th September
('96) and made the complaint about the persons missing at Chemmani -
very likely from an official communication rather than the 'Sunday
Island'. Senerath had it typed and routinely forwarded it to Fernando,
Inspector Crimes. Apart from questioning a few people, the Police
clearly did not get  very far. Sub Inspector Asoka Herath told court
that he had done a tooth-comb of the Chemmani sentry point and the
bunkers. There was evidently no serious interrogation of anyone, as they
were mainly concerned with locating the missing persons.

To anyone in the security forces in Jaffna then, the Brigadier's move
would have seemed a fulfilment of legal rituals for the record than a
serious intention to locate the missing. The Brigadier had at his
disposal all the means to get at the truth. What the Military Police did
later on the President's directive could have been done by Brigadier
Jayasundera himself. The Military Police team under Lt. Colonel Kanniya
Gunaratne which was  sent to Jaffna on 15th October '96, came with
nothing new and brought nothing new. It however diverted attention away
from the top brass in Jaffna who had done nothing serious.

This is after all an Army, and Jayasundera would only have had to pass
the word down the line of command that he wanted the truth quickly. That
the Army did try to find out internally is suggested by what General
Perera told civilians he associated with. Being dissatisfied with the
lack of information from the officer-in-charge, General Perera is said
to have responded, "In that case we will have to pack up and go home".
[Our Bulletin No.13]

The matter in fact was quite simple. Four persons cannot simply vanish
in broad daylight from a check point with more than ten men and with
civilians constantly passing by. Soldiers are usually scared of their
officers, and if it came to the worst, the civilian witnesses could have
been called and an identification parade held.

There were already after all reports of over a hundred missing persons
in Jaffna at that time. When the Police were called upon by the Army
which they knew to be responsible for those missing, they would have
known that the intention was to cover up. For, an honest investigation
of a case of this kind was bound to open a Pandora's box.

The 'Virakesari' of 15.10.96 published a letter from Krishanthy's elder
sister Prashanthy, the only surviving member of the family, to President
Kumaratunge, appealing for an inquiry into the matter. In it she stated,
"Several neighbours who witnessed the arrest  are reluctant to give
evidence after soldiers entered our house and fired into the air". This
letter may have been the turning point. Incidentally, it was about this
time that six soldiers were arrested over the rape and murder of Rajini
Velauthapillai in Urumpirai. This may have happened independently.

In our Special Report No.7 of August 1996, we gave several
uninvestigated cases of rape and murder. In the one at Manthuvil,
Thenmaratchy, on 17th May '96, three men and a child were killed and
three women were raped. We could now guess what the Army's attitude at
the top would have been.
 
 

2.2 Who ordered the murder of Krishanthy? - Some unanswered questions

The large number of disappearances at that time suggest that a decision
was taken at high level to eliminate persons  suspected of helping the
LTTE. It is this climate of impunity that enabled Krishanthy's tragedy
to take place. This is also why there was a reluctance to probe the
affair. The Court decision suggests  that Corporal Rajapakse was the
ring-leader of the crime. Possibly so, but it is not  so simple.

Krishanthy's is different from Rajini's case. It did not arise from a
sudden bestial urge that was over in a short time. The rape and murders
took place more than 8 hours after the initial abduction. Four civilians
were involved and at least ten service personnel, including another
corporal, knew about it. The Story was bound to spread, become the
gossip of the Army and very likely reach the alternative press. Eight
hours was a long time for the men to reflect on the consequences. That
is why this case is much more sensitive than Rajini's.

The men appear to have been confident that they were  to some extent
doing what they were required to do and that the Army would cover up for
them. Take the descriptions of the murders and the burials given in the
confessions and the testimony of Nazaar. Hardly any orders were issued,
hardly anything spoken. It was like a well-practised team moving with
mechanical precision.

Take the following extract from Rajapakse's confession read out in
Court, but largely ignored : " The accused Rajapakse had informed the
incident to Lt.Thudugala and another officer, Wijesiriwardena. They had
then ordered the accused to eliminate them". It is not clear whether he
is supposed to have met the officers, sent a messenger or communicated
by radio. The latter would have had others listening in.

The following is from Samarawickrema's testimony : Later [about 8.00 PM]
Corporal Asoka and witness went to the first accused's [Rajapakse's]
check-point. There both of them asked the first accused to hand over the
three [4?] persons to them, the first accused refused, following which
they went to their posts. During the following morning they learnt that
all three [4?] of them had been killed during the night.

Surely then, the event was soon after known to members of the Platoon(s)
who were not involved in the crime, and Lt.Thudugala who came to the
area the following day is bound to have been told about it by someone.
If not there was a state of mutiny. How could the Captain at Pungankulam
to whom a complaint was made the next morning failed to have come to
know?

Take Lt.Thudugala's testimony [Island 5.12.97] : "Personnel at army
check-points are not allowed to detain civilians. If in case of
suspicion a person is taken into custody, HQ Jaffna should be informed
immediately to take charge of the person."

If this was the actual state of affairs, once the complaint about the
missing was received, Thudugala, who had a whole career before him,
should have been the most keen to find out. He had to wait for the
Jaffna Police to come 8 days later and learn nothing, and then for the
Military Police team from Anuradhapura to do what he could have done 43
days before. This is a dubious state of affairs. If this was the
position, Corporal Asoka who has been let off lightly is guilty of a
serious breach of duty in failing to inform Thudugala of arrests made
with criminal intentions by Rajapakse, that he was made aware of.

An aspect of Rajapakse's testimony implicating Thudugala deserves
attention. It is a statement made in a confession to persons who meant
business, under conditions by no means friendly. When an officer was
implicated the boat was being rocked, and those interrogating him would
have repeatedly, and not at all politely, challenged him. If what he
claimed was not true, Rajapakse must have been a strong and calculating
person to insist that it stayed on the confession he signed, which
otherwise admitted his guilt in damning detail.

Major Sanath Podiralahamy, an investigating officer from the Military
Police, told the Court [Ceylon Daily News 5.3.98] : "Corporal
S.Rajapakse, the first accused had revealed in his statement that
Krishanthy and three others were arrested and later murdered and buried
upon the instruction of Lt.Thudugala. But I am not aware that
Lt.Thudugala was arrested and released despite evidence of his
involvement in the Chemmani Crimes".

This was said in response to the defence prodding him about trying to
cover up for the platoon commander. Podiralahamy was a senior
investigating officer soaked in the details of the case. He is unlikely
to have made such a statement unless he had some doubts about Thudugala,
and on the spur of the moment, found himself unable to explain why this
officer was not questioned. Later, on second thoughts as it were,
Podiralahamy said that he was not aware of a situation where
Lt.Thudugala was arrested and released, and that the officer had no
involvement to his knowledge. [CDN 10.5.98]
 

2.3  The Letter from Prison

Whatever the nature of Thudugala's role, there are significant
indications to suggest that some of the men, at least, believed that in
killing the four they were carrying out orders from above. One such
indication which set us looking more deeply into the matter was an
unsigned hand-written document in Sinhalese sent by one or more of the
accused from Welikade Prison. An ex-serviceman discharged from prison
handed over the document to the editor of the Sinhalese weekly,
Yukthiya. It alleged that a number of dead bodies had been buried in
Chemmani on orders and gave a sketch of the area showing 32 burial
sites. This  was in early 1997, long before the case was taken up in
Court and the sensational disclosures at the end of it. Soon after the
verdict Yukthiya used the map in its story, which it had not done so
earlier of out of an anxiety that the burial sites may be tampered with.

The text of the document too merits closer scrutiny. The contents reveal
that the main author of the  document is Indrajith. Some of it is
fanciful or wildly speculative. It is for example suggested that
Thudugala wanted Krishanthy killed because she was eyewitness to a
vehicle driven by him knocking down and killing Krishanthy's classmate,
whose very funeral Krishanthy had been to a few minutes before being
abducted at Chemmani. We understand that the actual driver of the
vehicle, an army driver, had himself gone to the funeral and had been
deeply upset about the accident.

We will take some of the contents that seem to throw light on the inner
drama. Indrajith understood that the orders had come in the form,
"Bittara hathara podikara dhanda" (Crush the four eggs). The document
says  : "A ring and two purses were removed from the men and given to
the mother. She was told that the men were being taken for questioning.
One male was taken by Pradeep, Muthu Banda, Jayatilleke and Perera, and
was strangled and killed using a wire. The other male was taken by
Indrajith and Jayasinghe. Indrajith tightened the wire around his neck.
But the wire broke. Jayasinghe then took an axe and struck his head. He
fell down. The next blow came down on his chest.

"... Nazaar and Samarawickrema came where Corporal Rajapakse was with
the girl and started  talking to  the girl. All the rest came to
Rajapakse. Jayatilleke, Perera, Jayasinghe, Pradeep, Nazaar and
Samarawickrema took the girl to a bund in the field. Indrajith came to
Rajapakse and asked where the others were. Rajapakse said that they had
gone down and asked him to look and come. Indrajith went and asked the
girl whether she belonged to the LTTE. The girl replied, "No, I am a
student".

"Jayatilleke and Nazaar told Indrajith, "We brought her here to rape,
you go and observe 'sil' (Buddhist devotions)". Indrajith responded,
"Haven't you been told that you may kill, but you must not rape?"

"Subsequently Jayatilleke, Nazaar, Samarawickrema, Perera, Jayasinghe
and Pradeep raped her in that order, killed and buried her ...."

According to the document the group, or several of them, left for an
operation in Killinochchi some days later. Rajapakse was injured by
shrapnel from a mortar shell and his fate remained uncertain. When the
incident became public, the document says, Thudugala and the other
officer told them that they would  tell the Police that Rajapakse was
wholly responsible, and anyone contradicting that version would face
dire consequences.

The extracts above show that Indrajith played a central role in drafting
the document. All else in the document is hearsay. Further, in
Rajapakse's confession, he had named Indrajith as a rapist. But
Indrajith did not accept rape in his confession and, importantly, the
Court did not find him guilty of rape - apparently on the grounds that
he had not confessed to it. Except for Nishantha, Muthu Banda and Alwis
who died in prison of meningitis, whom evidently no one accused of rape,
the rest seem to have assumed that they were all guilty of it, although
they were not eyewitnesses to the whole of it. They were moving about.
Rajapakse seems to have been about the last to rape the victim and
Indrajith may not have been there.

The document also seems to have been eager to implicate Nazaar and
Samarawickrema in rape. On the other hand Indrajith may have seen
Samarawickrema talking to Rajapakse just before the orgy begun and may
have assumed that he stayed on. Nazaar, who was forced to keep the
weapons, said that he saw several others whom he could not identify.
Some may have come from other sentry points.

Indrajith, quite remarkably, has not shown any hesitation in accepting
his role in murder. It is murder rather than rape  that carried a death
sentence. In his mind it was rape, rather than murder, that was
shameful. In Nazaar's statement he first saw Indrajith bringing a bucket
of water - perhaps the routine requirement for washing after the labour
of killing and burying.

The order "Bittara hathara podikara dhanda" - "crush the four eggs" - is
a variant of standard military jargon, well understood by the men. In
our Bulletin No.10 of February 1996 dealing with the Kumarapuram
(Killiveddy) Massacre, we reported a similar expression uttered by a
very high ranking officer as a prelude to the massacre and rape. The
expression "Kudu karanda" - "Smash into powder" - was heard being
uttered by this officer in the neighbouring Sinhalese village of
Dehiwatte, and communicated in person to the late MP for Trincomalee,
Mr.A.Thangathurai , with a plea not to let it out that they had told
him. Not so remarkably, only about a dozen of low ranking men from the
battalion of Colonel Nihal Silva which was responsible for this outrage
have been charged. The men are on bail with the case involving rape and
murder still dragging on. "Justice delayed is Justice denied".

Take the exchange Indrajith claimed to have had with Jayatilleke and
Nazaar, where they told him "We brought her here to rape, you go and
observe 'sil'", to which Indrajith had replied, "You may kill, but not
rape". If Lance Corporal Indrajith had invented this, it qualifies him
as a writer of good fiction, which he is very likely not. According to
Nazaar, Pradeep had asked him to go and have his turn at rape, and a
little while later Jayatilleke came up and scolded him in foul language
for talking to the victim and chased him away.

This is  strong corroboration of a crucial part of Indrajith's  letter,
written long before the case came to Court. Indrajith could not have
known the contents of Nazaar's statement to the interrogators. This
means that Indrajith came to where Krishanthy was, at the time
Jayatilleke and Nazaar were there. "You go and observe 'sil'" in the
letter corresponds well with Jayatilleke's 'foul language' referred to
by Nazaar. This encounter may also explain others suspecting Nazaar of
rape.

Jayatilleke appears to be the focus of anger in Indrajith's document,
apart from the officers. The above also gives some insight into
Indrajith;s subsequent conduct. He and Rajapakse staged an escape from
their jailers after asking to be taken for a call of nature when
attending Court. Rajapakse surrendered, while Indrajith is still
absconding. Rajapakse and the others seemed fairly resigned to the
verdict, while Indrajith's whole conduct is suggestive of a certain
righteous indignation. His point-of-view comes across as : "Just as
society hires butchers to kill animals for consumption and pays them a
living, I too joined the Sri Lankan Army, and was paid for killing when
those in command wanted me to kill in cold blood. Now why are you
punishing and humiliating me, while the officers who wanted us to kill
are getting their promotions and decorations, and are being lionised  as
national heroes?"

The Krishanthy Kumarasamy case was one where, for those who care to see,
far too much was revealed than the Defence establishment bargained for.
Primarily  it was not a case of a few bad apples, but mainly the result
of institutionalised violence of the State, which did not understand the
limits of impunity that could be covered up.

The victims of the incident were not just Krishanthy, her friends and
relatives, but also the families of servicemen implicated in the case -
wives and mothers denied support, whose lives had collapsed in  shame,
and children too young to understand the stigma they would have to live
with.

Thus the State which was pledged to protect and foster Buddhism, had
picked these youths out of rural areas where they were taught the tenets
of that noble religion in the humble village temple, and pushed them
into a world of institutionalised depravity, which destroyed them.

The court  case, although an exercise in damage control, did a lot of
good, and is one of the few concretely beneficial things this government
has done. [Some would object that the Government cannot take credit for
the normal operation of the law. But that is now how things are in Sri
Lanka. No previous government would have allowed the case to go through
and let the judges decide.]

The court decision has at least given the message that no service
personnel committing a crime on orders from superior officers, can take
indemnity for granted.

The case also witnessed the judiciary and even the defence confine
themselves to chosen limits so as not to buck the Defence establishment
and the State. It is therefore a tremendous loss that the deeper
questions about the causes of the escalation of conflict were not
raised. This also did an injustice to the convicted by isolating their
actions from the system which more or less expected them to act in the
manner they did. The performance of the defence was one where the
accused did not get a fair deal. They asked the witnesses from Jaffna
pointless questions about people killed by the Tigers. They would have
done much better to raise deeper questions about the Jaffna
disappearances and the institution to which the accused belonged. But
this would have rocked the boat. Indeed, the Army had abandoned the
accused who could not afford lawyers. We learn that they had wanted to
testify in Court, but this had not been allowed by the lawyers
appearing  for them. They had to make their dramatic intervention after
the verdict.
 

2.4  What were the officers doing?

When the displaced civilians returned to Jaffna in April 1996, the LTTE
was determined to make life difficult for them. The LTTE started
throwing bombs at soldiers keeping order in queues of civilians
collecting food rations, hoping for reprisals. The Army's highly
disciplined behaviour in these instances was highly commended. Even
though information was reaching the Army on the LTTE's activity, the
civilians were getting worried by the Army's inaction and
over-confidence. The civilians did, after all they had been through,
want to be left in peace. Suggestions were put into suggestion boxes
advising the authorities not to have grand public tamashas and opening
ceremonies such as the one on 4th July where the Town Commandant lost
his life. Instead they were asked to go ahead with rehabilitation
decisively, but on  low key, where people could see the results. This
advice was not taken. Decorating and painting a place in advance of a
public ceremony and ministerial visit was looking for the kind of
trouble which came on 4th July. Since then ministers have been very
paranoid about going to Jaffna.

Shaken badly, the defence authorities became paranoid. A decision was
taken to play rough. Military Intelligence in Jaffna, which was then
under Colonel Zacky was no doubt asked to compile lists of LTTE suspects
from information received, if it had not already done so, and pass them
onto the area commands. Arrests were made at homes, at sentry points,
often from lists and also on mere suspicion. The 'white van' arrests in
Jaffna Town, discontinued as soon as people began to talk about it, were
directly associated with MI. But it took several months before people
realised that those arrested were being killed.

We have no doubt, and it cannot be otherwise, that those in command well
knew what was going on. We stated in Special Report No.7 of August '96
that when people complained to very senior officers about persons
arrested and missing, they listened, appearing to be concerned but
unable to do anything. Sometimes these officers told the complainants,
"Before the incident [4th July] we tried the soft method, but we were
not getting much information. But now we are trying a different method
and are recovering many hidden weapons!"

The decision no doubt was taken high up. The officer in command in the
Jaffna Peninsula was at that time General Srilal Weerasooriya. He was in
Trincomalee when the war began in June 1990 and was immediately replaced
by the late Brigadier Lucky Wijeratne. Earlier Weerasooriya had been
communicating with the LTTE at the behest of President Premadasa, and
was reportedly bitter when the LTTE ended the honeymoon and went to war.
All this was done over the heads of the people who later suffered from
Premadasa's and the Army's ire.

In mid-February 1991 Brigadier Weerasooriya replaced Siri Peiris in
Mannar. The change was regarded as for the better in that missing
persons were generally accounted for, although bad forms of torture
continued. One incident in particular says something about his approach.
On 17th February 1991 [ our report No.9 of 1992], four persons,
including three teachers, one of whom, Sebamalai, was a head master,
were travelling to Murunkan from Mannar Island. They were stopped by the
Army at Vankalai. An RC priest who went that way on a motor cycle saw
Sebamalai lying injured on the road and crying for help, but was afraid
to stop. Other travellers saw what appeared to be corpses in a nearby
well.

Relatives who went looking for the missing later on found the well
covered up and a patch of plants at the site. The matter was raised with
Brigadier Weerasooriya by local citizens, who in turn promised to
investigate the matter. Later on he said that he could not proceed in
the matter as the field officer, Major Dias, completely denied the
incident.

Under Weerasooriya in Jaffna were General Janaka Perara in charge of 51
Division and General P.A.Karunatilleke in charge of 52 Division. Both
were implicated in testimony before Disappearance Commissions dealing
with the South. Perera also had to appear before the magistrate's court
in Nikerawetiya over the killings of 20 civilians by the Army after he
had personally threatened reprisals. In January 1996 President
Kumaratunge had reportedly included them in a list of about 200 officers
to be placed on compulsory leave, sent with a covering letter to the
Army Commander. Action was not taken. Where the courts are concerned
too, nothing serious is bound to happen.

What we could be fairly certain of is that since these officers were
marked, they were not likely to risk their careers further by initiating
a course of disappearances unless they were covered by agreement and
consent from above. Moreover whatever was communicated to officers  at
brigadier level was certainly in the form of license to play rough and
even kill rather than instructions to kill. For example Larry Wijeratne
who commanded the Vadamaratchy Brigade under Karunatilleke had a
refreshingly clean record during that dark period. He maintained order
in a place of great symbolic importance to the LTTE, but by using humane
methods. It is his exemplariness that made him a target of the LTTE,
falling victim to a suicide bomber on 14th May 1998.

The Krishanthy tragedy was the result of the license that existed at
that time, even to low ranking men, to detain, torture and to kill. All
those who indulged in such were confident that the Army and the Defence
Ministry would cover up for them, as we may judge from the record.

2.5 Pinning responsibility

With the verdict delivered in the Krishanthy Kumarasamy case, many
deemed the Government to have earned a reprieve for what happened during
those months. We have argued that the problem lay not so much with those
like Rajapakse and Indrajith whose hands actually touched blood, but
much higher up. Making a show of throwing them to the hangman solves
nothing. They are relatively innocent, however horrible their actions.
This is one of the strongest arguments against hanging in general.

To pin the responsibility for this tragedy, among hundreds of others in
Jaffna at that time which still lie shrouded in darkness, the key
question is this : Why was no action taken to enforce the issue of
receipts for arrest in Jaffna during those crucial months against
mounting complaints of missing persons?

It cannot be as accidental as may be argued. It was sinister and
translated itself into hundreds of murders, often after cruel torture.
The requirement to issue receipts was well known to all the officers.
Between Deputy Defence Minister, Mr. Ratwatte, General Daluwatte who was
then army commander, and General Weerasooriya, they have a case to
answer. It could not have been without their knowledge.

 Ratwatte has been reported as being angry over the Army's failure to
complete the northward advance begun in June 1997 after more than a
year. Evidently the disappearances in Jaffna did not cause him the
slightest worry. The disappearances in Jaffna were undoubtedly a blow to
President Kumaratunge just when she wanted to show the world that she
was inaugurating a new era of Human Rights in Sri Lanka by the signing
of the Optional Protocol of the ICCPR. She had everything to gain by
getting to the bottom of the matter. Why she in addition as
commander-in-chief of the armed forces gave promotions to the very men
who had let her down remains to be explained.
 

2.6 Krishanthy : How did it happen?

There is a particular psychology that operates at sentry points. One is
advised to look appropriately humble and not keep one's spine erect
while passing  soldiers who are normally suspicious. During those months
when license for acting with impunity was given, it must have been much
more dangerous. There have been press reports of others taken in at the
same Chemmani sentry point and going missing, including a young Brahmin
priest. Some of this may have been done on the basis of lists furnished.

Krishanthy was an intelligent and spirited girl with a bright future,
who very likely did not conform to the norms at a sentry point. Normally
she travelled in a group. The soldiers knew her and would have regularly
plied her with questions, sometimes out of fun, and sometimes out of
suspicion, depending on the individual. On that fatal day several
factors combined to contribute to the tragedy.

Having sat for her A Level Chemistry paper, Krishanthy had gone with her
friend Gowthami Sundaram to the funeral house of their friend and
classmate Janaki, who had succumbed to being knocked down by an army
vehicle. Even what was purely an accident would have had a different
colouring in the minds of the people because it was an army of
outsiders. Krishanthy then travelled alone. She may have been asked by
the soldiers where she was coming from and why alone? The soldiers then
had power over life and death, and perhaps her reply or the tone of the
reply may have provided the context for them to show their power, even
if their intentions then did not go so far  as what transpired.

According to Samarawickrema's testimony, Rajapakse at 2.00 PM had asked
him to get some information from an LTTE activist. Her reply to
Samarawickrema's question is also of significance : "We trusted the Army
and returned to Jaffna. Why are you harassing us like this?"

Rajapakse was an experienced man, and he does not come across as one so
devoid of intelligence as to have believed that he could kill four and
get away with it under the circumstances, unless he and his accomplices
were confident that they would be shielded. There were many witnesses,
including civilians passing by, as well as colleagues in the Army and
Police.

An important question is whether he or anyone else told the officer
Lt.Thudugala as Rajapakse claims he did and Thudugala denied. There are
also some further considerations.

From what civilians have observed in Jaffna, the lieutenants know where
their men are and exactly what they are doing while on duty. There is
also an obligation on the part of the others to report any breach of
orders. If not it is not an Army. A corporal and his party sent to guard
an important point can all get drunk and fall asleep. Here the drama
took place over a duration of more than ten hours with other men in the
platoon knowing.

Lt.Thudugala had not told the Court that he came to know of the crimes
when he went to the point the following day, or on any other day in the
succeeding 43 days with the matter increasingly becoming a public issue,
until the investigation team found out. Thudugala had no conceivable
motive, except that at a time when killing of suspects was the norm, if
Rajapakse had told him that he had an LTTE suspect along with some
others looking for her, he (Thudugala) may have answered indifferently.
On the other hand if the high command had insisted upon issuing
receipts, with strict accountability for those detained, the officers
and their men would have had to look sharp. There is enough testimony to
show that this was far from being the situation in Jaffna then.

If Lt.Thudugala knew at least a day or two after the event, as we are
sure he did, then all the senior officers up the line did. They had to
protect Lt.Thudugala to protect themselves and delay the exposure of the
game they were all playing.

As a postscript, Krishanthy scored distinctions for the two A Level
papers she sat, with no family to celebrate except her lone grieving
sister.

The case above gives us a strong reason for not reviving the death
penalty. Too often it is scape-goats from an under privileged sections
of society that the courts sentence to hanging.

It has been reported that Lt.Thudugala and several members of his
platoon died in the slaughter at Killinochchi during late September
1998. All these men were in some way victims of bad policies of
successive governments that resulted in professional degradation of the
security forces, which strengthened the virulence of rebellion, and sent
them into slaughter.

The camp controlling Chemmani in Maniamthottam Road, we reliably learn,
is one of the camps to which detainees were brought for torture and
elimination. Among those killed were a couple living near that camp
towards the Kandy Road. The wife was killed after rape. The naked bodies
of the detainees killed at the intelligence camp used to be transported
to Chemmani for assistance in burial by Rajapakse and his men. After
Embilipitiya where clothes helped in the identification of corpses after
5 years, the Army has learned to take off the clothes before burial.
Note also that in the four killed in the Krishanthy case, the clothes
were cut up and buried separately by low ranking men who had obviously
been taught by their officers.

According to the system followed in the area, all those detained in that
area, whether on information, or on suspicion at sentry points, were
sent to Pungankulam army camp. This was the controlling camp for
Chemmani. An officer in charge at Pungankulam then, or closely
associated with it, has been named as Major Lalith Weerakody. It was
Pungankulam camp which decided what to do with the detainees. Some were
perhaps released or sent to Palaly or KKS. The others were sent to the
Ariyalai intelligence camp. We are unaware of survivors from this camp
at that time, but we give below the testimony of a survivor from the
Manipay camp a few months later (January 1997).

It is also notable that some of those who disappeared were first
reported having been seen at Pungankulam camp. Also the very next
morning after Krishanthy's arrest, a complaint was lodged with a
responsible officer at Pungankulam camp. To anyone who got to know the
system, things would have been immediately clear. There was little
mystery. One wonders what the illustrious members of the Board of
Inquiry were doing in Jaffna pottering about with marginal matters,
discovering hardly anything new.

Another camp under Jaffna Town Commandant where torture used to take
place is the one near Stanley College, quite close to Pungankulam and
Ariyalai. Another notorious camp in Janaka Perera's division was Manipay
(See 3.1). Several more, especially in Thenmaratchy, Karunatilleke's
division, remain to be identified. Some of the big camps in
Thenmaratchy, where a larger number of persons disappeared, are in
isolated places such as coconut estates, previously taken from the
owners and used by the LTTE. It will be a long time before skeletons are
found in this area. It is also possible that those detained in Kaithady
and Navatkuli in Thenmaratchy too were sent to the Ariyalai intelligence
camp, since it is nearby. Bodies were disposed of in all kinds of
places, e.g. lavatory pits and wells. One need not wonder at the anxiety
the Krishanthy Kumarasamy case would have caused the Town Commandant,
Brigadier Gamini Jayasundara, and his superiors, Generals Janaka Perera,
Srilal Weerasooriya, and those still higher.
 

 3.  After the 1996 disappearances

Apart from the agony of the families concerned, all that the Jaffna
disappearances accomplished was to put Sri Lanka back into the top
league of human rights violators. It was the work of paranoid,
unprincipled men, who after 18 years failed to understand the problem.
As we said the disappeared were nearly all under duress marginal LTTE
helpers, ex-LTTE or completely innocent. In a society once closely
controlled by the LTTE, the organisation had many to pressure and use.
More seriously, for an organisation in permanent crisis as the LTTE is,
the disappearances made it far more difficult for discontented LTTE
cadre to leave in the confidence that they could start a new life
without being crushed between two sets of killers.

For the LTTE it was business as usual. Its core network remained largely
intact. In November 1996 two former employees of an LTTE propaganda unit
were seen in a queue of Deepavali shoppers outside a government sales
outlet selling cloth. The next day a grenade was thrown, killing a
salesgirl and injuring 12 others. 25 yards from a sentry point on
Navalar Road a young couple who seemed to be madly in love were talking
to each other under a tree. The soldiers were staring at them in
amusement. The two were LTTE agents. There are youths who drop into
certain shops and inquire about prices without buying anything. The shop
keepers have no doubt who they are. There are persons loitering around
shops near army camps watching who is going to meet the Army. Several
shops have known agents spying for the LTTE. A middle-aged employee of a
government department hangs about the Jaffna bus stand about the time
air passengers from Colombo arrive by bus from Palaly. From his
movements and whom he meets, the people know his business. Few of them
do it for the love of the LTTE.

The LTTE retains the network to spread rumours, intimidate people and to
control the press indirectly. The people of Jaffna and the Army have to
live with this until the Government gets its act together and implements
a political settlement that would give the people the confidence to defy
the LTTE.

The LTTE never was and never will be serious about the disappearances
under Army control. Several members of the Human Rights Commission were
pushing hard to investigate the claims about the Chemmani graves. As
they were about to come last September, the LTTE stopped the air-service
by shooting down a Lionair flight. Just before a team came from Colombo
on 5th March this year, the LTTE stopped magistrate's courts from
functioning under threat. Equally inexplicable delays on the part of
Government too raise doubts about an honest investigation into the
Jaffna graves.

If instead of killing the large numbers of those who disappeared, the
Army had questioned them, released them, and asked them to sign weekly
at army camps, the LTTE would have become paranoid and killed many of
them as the record in Jaffna (see our reports) suggests. For the LTTE
people are use and throw materiel. There was another problem for the
LTTE. As soon as the Chemmani graves issue came up after the court
verdict, there were frantic messages from Jaffna, from those who are
forced to remain silent : "Don't forget those other mass graves left
behind by the LTTE in Vatharawattai, Vathiri and so on!" If Chemmani is
excavated, other excavations may follow and that would be awkward for
the LTTE. Its supporters instead of giving relief to the families of
those who disappeared under Army control, would like to keep the issue
alive for propaganda mileage without letting it go too far.

While disappearances caused by the Army are actually good for the LTTE,
its own problems stem from something else - the tired, angry and
long-suffering people. After the LTTE during its rule had made torture
and disappearance the norm, there was little resentment about
disappearances caused by the Army. Many accepted that most of those who
disappeared had some LTTE links, and took it as something to be expected
in a change of regime. Some reacted strongly to our reports on
disappearances with sentiments such as : "When an LTTE fellow places a
bomb opposite my house, why does he do it? Some army patrol will get
caught to it, one or two would get killed, and he then expects and wants
the Army to come and kill me and my family. What do you expect the Army
to do if they catch him, other than kill him?"

Most often politically conscious persons who understand the State, the
long term implications, and value the sacrifices made for the Tamil
struggle, have strong qualms about giving information to the Army. To
them fighting the LTTE where they are concerned must be an internal
affair. But for the ordinary people, their depoliticisation primarily
owed to the LTTE's repression. In confronting the deviousness of the
LTTE, they have learnt to be equally devious. It is like the people in
the East making covert deals with the Army to thwart the LTTE's attempts
to recruit their children. [Macan Markar in Sunday Leader 12 Dec. 1998.]

In several parts of Jaffna the people could be quite open about this.
One lady said in the presence of some of her neighbours, "I saw some of
those fellows next door and sent the man in front to tell the Army".
Another lady teacher said quite openly, "Lord Murugan packed off those
fellows to the Vanni jungles. Now they are trying to come back through
peace talks. Let them try, we will teach them a lesson!"

This is one aspect of the Tamil tragedy. There is an upper segment of
this society who verbally support the Tigers, either out of fear of
because it gives them a thrill. For them there is no sense of
responsibility for the young Tiger cadre, the people or for the lives of
the young and old being ruined. At a lower level, a people once ready to
make sacrifices for the liberation struggle are left leaderless,
managing their lives from day to day. The political life of the
community plummeted to its lowest level. The Tigers' brand of
totalitarianism which forced the people to become 'traitors' en masse,
carried the seeds of its own destruction.

Like the families of those who disappeared under LTTE control, those of
victims who disappeared under Army control too are left very much alone,
with no genuine friends, unable to find meaning, hope or reparation in
these unwanted deaths.
 

3.1 An extraordinary ordeal : Torture after the Krishanthy affair :

The Government had signed the Convention Against Torture and in November
1996, appointed a Board of Inquiry into missing persons in Jaffna. The
case of torture below which took place in January 1997 and all that
followed shows how seriously all this is taken by the State machinery
and the Security Forces.

V is in a family of 4 girls and 2 boys. The father was a factory hand at
the KKS cement factory which has been closed from 1990. The family was
displaced and the father died in 1992. The elder brother left for France
after the completion of his ALs.
 
V studied at Mahajana College, which had been relocated from Tellipallai
about 1991, and gained considerable skills by following courses. A craft
course in radio repair at the Uduvil YMCA enabled him to support his
family. He also learnt karate from Bala Master and earned  a
certificate. At school he conducted karate classes. He never joined the
LTTE. But while the LTTE  controlled Jaffna, he had to do what he was
asked to do with his skills, and sometimes was taken away with his whole
class to dig bunkers.

The family was displaced to Vadamaratchy during the Exodus, and after
their return in April 1996 life went on much as before. Soldiers coming
to check his house saw his karate Brown Belt certificate, and some of
them came to him for lessons as LTTE cadre had done earlier. He also
taught karate at school and repaired radios. Soldiers too were among his
customers.

On 2nd January 1997 there was a round up by the Army from Manipay and 35
young men and women were detained at Thavady army camp. The round up
party had come with three masked persons whose hands were tied behind.
There was some beating during the round up, but at camp they were not
beaten for two days. Some soldiers who knew about V even got him to
teach them karate. There was then a landmine explosion in which some
soldiers were killed - 3 bodies were brought to the camp. Then the
beating with poles and wires commenced. The officers regularly looked in
and knew what was going on. But the beating and torture took place when
the officers were not present. Prisoners were laid on the ground, and
then soldiers stepped on the head saying that they would get off if the
prisoner admitted being in the LTTE. This was done repeatedly leaving
heads of prisoners swollen and in pain.

While the men were tortured the women were made to watch. Then the women
were blindfolded and the men were made to watch while the women were
pinched with players. Once when the officer-in charge came that way, the
women complained about what was being done to them. The officer
dramatically asked them to point out the culprits. The women told him to
ask the men since they had been blindfolded. Except for about two men,
the rest said that they did not know. After the officer left, the two
prisoners who pointed at some of the culprits were taken to a room and
beaten.

The men were kept with their hands and legs tied and the women with only
hands tied, but in a dishevelled state of dress and appearance. On
Sunday (5th) there was a meeting at the camp attended by about 150
soldiers. After the meeting the officers made themselves scarce. The men
who came for the meeting, along with the others already there, went into
a beating spree, pulling and squeezing the private parts of  both the
men and the women detainees.

On Monday 6th about 8.00 P.M., the detainees were transferred to the
Manipay main camp at Suthumalai, situated in a paddy field near Amman
Kovil. The men and women were now separated. Here the torture continued
in earnest. The prisoners were beaten with sand filled s-lon pipes,
suffocated with polythene bags  containing petrol and ants wrapped over
their head and electrocuted  through both sides of the head using
current from a large manually rotated dynamo - apparently taken from a
vehicle. The officer in overall charge was  Colonel Udaya Perera.

The prisoners witnessed something significant while being led from one
house in the complex to another, two premises away. The soldiers
suddenly ordered them to lie down flat saying that the LTTE is about to
fire. They saw some soldiers rushing in with three dead bodies. Quickly
lifting the concrete slab covering a septic tank, they threw in the
bodies and let the lid down, One body may have possibly been that of the
younger of two brothers detained with the group. Ranjan, the elder,
continued to be with them. But they lost track of the younger.

Later at Manipay, 16 persons were hung in a row by their toes, burning
chilli powder was placed beneath and they were beaten on the back till
the skin started peeling. A soldier who was called 'Kapa' and spoke some
Tamil told them, "It is not the LTTE that we want to kill. It is
because of them that we have jobs. It is you people who help the LTTE
that we must kill!"

Things then got more novel and gruesome. The most cruel of all, an
electric drill was brought out and V's two big toes were drilled
through. Then hooks such as those used at Kaavady festivals were
inserted into the holes and V was hung inside a well by his hooked toes
with a rope going over a pulley. All the time V was questioned  about
teaching the LTTE karate and helping them in other ways. V admitted
doing various things because he had no choice. His entire class was
taken to dig bunkers and to hang 'thoranam' (decorations) at 'martyrs''
funerals. This went on for about 90 minutes. V was suffocated by dipping
into the well four times. V fainted several times. Finally V was dumped
on the floor and cut with a shaving blade to check if he had fainted.
There were in the camp about 3 ex-LTTE ers assisting the Army in the
proceedings. About 16 prisoners were so drilled.

V could not get up the next day. A wooden plank with nails fixed was
brought and the nails were 'beaten into V's heels. Then 4 soldiers came,
unlocked V's handcuffs, placed his palms on  a flat board and beat them
with a pestle. A 1/4 inch nail was placed above the right hand and was
hammered with the pestle and lodged in. At 6.00 A.M. on the 7th the ICRC
arrived. The prisoners who were in a very bad state like V were quickly
taken away to another part of the camp on stretchers, and brought back
after the ICRC left.

Sadism was routine and uncontrolled. For example a soldier came in and
asked V who was lying in pain if he would like to smoke a cigarette.
Without waiting for an answer, the soldier lit a cigarette and burnt him
by holding it down in 4 places including the testicles. Once the
prisoners were asked if they would like to ease themselves. Those
wanting to were taken out, singed with a gas burner and sent back.

Some of the Army women went out of their way to be kind to the prisoners
who were bed ridden, such as by cleaning their wounds or brushing their
teeth. If they heard the men coming, they quickly ran away. Once some
men came after the women had left and asked V who cleaned his teeth?
Then a soldier said, "You are fighting for your soil, aren't you? You
can have plenty of it", and then proceeded to stuff V's mouth with sand,
ordering him to brush.

From the screams they regularly heard from where the women were held,
they knew that the women too were being tortured. On the 7th, some
bearded rough looking men, apparently from the Special Forces, brought
in what appeared to be an unconscious woman, threw her on the floor, and
asked the male prisoners to identify her. Since no one could identify
her, they were beaten. The prisoners were then told, "Remember that many
of our colleagues killed by you have been sent home packed in plastic
bags, limb by limb. Now you must do the same for your people." An SF man
brought out a sword, and to the dismay of the prisoners around,
proceeded to cut the girl into 4 pieces. The prisoners were ordered to
put the pieces in sacks.

It was later that the prisoners realised that the girl must have been
shot dead outside and was not a prisoner killed in the camp. For some of
the prisoners had noticed the corpse bleeding from the stomach and
chest. One day V was asked whether he was in school. When he replied in
the affirmative, word was sent to his principal to bring his
certificates, which were received the next day. Seeing that he took part
in swimming, cycle racing and cross-country running, they told him that
he was studying to be a Sea Tiger.

On the same day that the ICRC first visited, 3 detainees were released
in the night. Through them a message was passed on to the ICRC to the
effect that some of the prisoners were in a very bad condition. Whether
because of this message or because of having talked to some of the
prisoners earlier, the ICRC arrived at 6.00 P.M. the next day. They
waited at the entrance for a long time, until the commander went to
them. They had an argument with him and left. Apparently the commander
wanted them to come the next day. Before ICRC could come again, 25
prisoners were sent to the KKS police station. V went in an Elf van
whose back portion was covered with a sheet. At the police station they
were put into cells after their statements were recorded. On the 10th,
Friday, the ICRC came to KKS and took them to Jaffna Hospital. Although
the hospital doctors wanted V to be warded, the Police insisted on
taking him back.

Just after mid-March when V could just manage to walk a short distance,
he was blindfolded and transferred to Anuradhapura prison. 3 days later
he was produced in court at Anuradhapura where the proceedings were in
Sinhalese. Evidently the police had given some kind of charges
implicating him with the LTTE. There is plenty of scope for implicating
anyone in Jaffna - digging bunkers for example when the LTTE was in
control. The prisoner who could hardly walk and carried the nail in his
person gifted by his torturers, was, for his grave crimes, committed by
the Judge to Magazine Prison. The victim was among 25 prisoners produced
in mid-June 1997 before the Judge in Colombo. In the meantime the school
principal had visited the victim in prison and had given him a school
enrolment card. This helped him to get bail for Rs 2500/-. Others were
charged significantly higher amounts.

So helpless was the victim in Colombo, and such was the fear among his
relatives, that it took him nearly a year to seek medical help. He
stayed with an uncle in a Colombo suburb working as a sales boy in his
shop. In the meantime he was being repeatedly picked up by the police -
in mid-September '97, mid-December, mid-March '98 and late May. On each
occasion he was released in a matter of days. On the last occasion he
and his cousin were in the cell for 5 days.

In February '98 he had an experience which says a good deal about the
position of Tamils in Colombo. It is a common occurrence in Colombo for
drug addicts to pick out the Tamil shops and demand protection money
from them. Failure to give the money is bound to result in various forms
of criminal harassment. They dare not try this with Sinhalese or Muslim
shopkeepers, as the latter have a number of options to deal with them.
On this occasion, V's uncle sent him to the bank with Rs 200,000/- in a
bag to be deposited. Some drug addicts followed him, stabbed him in the
thigh with a knife and grabbed the bag with the money. But V in a burst
of energy not displayed for the past 14 months caught up with the
robbers, gave them a taste of his karate brown belt skill, and got the
money back. The matter was reported to the Police. The Police advised
the uncle, "We can pick them up and put them in the locker. But sooner
or later we will have to release them and they will come back to you.
You will have the least amount of trouble if you simply pay them
something once in a way." Here, the State was technically upholding the
normal-law to the letter.

It was after mid-98, about a year from his release, that V sought
medical help over the nail in his hand at the Colombo G.H.. The doctor
who examined him arranged for surgery and also referred V to the Family
Rehabilitation Centre - an NGO dealing with trauma victims. On 20th
August the nail was removed from the hand under local anaesthesia. Two
days later the Police picked him up again. This time the
officer-in-charge scolded the men who brought him, pointing out that
they had already checked him out several times, and released him .

V suffers from muscle pain in the back, his left-heel cannot be placed
down, some of his fingers are partially numb and his eyes tear and have
become short-sighted. The scene of the girl being cut by the SF men
recurs in his dreams, causing him to scream and faint. V also sweats
when he sees the Police. He now intends going to France and joining his
brother. The only way, unfortunately, would be illegal.

The case in question tells us a good deal about the system that is
confirmed by several cases we have presented from time to time. V was
arrested in the first place either because the masked informants under
pressure to point out suspects had dealings with him when they were in
the LTTE, or the soldiers may have wanted karate lessons. He was
tortured because of a surmise that a Tamil boy interested in a number of
sports, including karate, must have been a Tiger.

Once he was dispatched to the Police after the ICRC brought about
pressure, the Police too tried to cover up rather than give the victim
the required medical attention. From the fact that he was later bailed
out and not subject to further questioning  after the Police had first
recorded his statement, shows that the Police knew that he was quite
harmless. But they had to pretend that he was a dangerous case who might
escape, so as to avoid warding him in Jaffna hospital where some
visiting journalists may have talked to him.

When he was sent to Anuradhapura prison 3 months later, he ought to have
been routinely examined by a judicial medical officer (JMO) and his
condition reported to the judicial officer (eg. magistrate) concerned.
The victim went before the judicial officer with a pronounced limp and a
nail in his hand. No inquiry was made about his condition, no provision
made for treatment, but the victim's incarceration was for no
intelligent reason extended on a detention order for a further 3 months.
The victim was bailed out carrying a message drawn from his treatment
all this time, that any attempt to get medical help and reveal his
problems was bound to land him in trouble. Later the Police who
occasionally held him in Colombo, and nurses at the Colombo GH where he
eventually got some treatment, well meaningly advised him not to talk
about what had happened to him.

In a country that  has accepted that torture is abhorrent by signing the
international convention against it, there should have been meaningful
steps to prevent its occurrence. Any official, whether police, medical,
judicial, or even military, confronted with its occurrence, should have
been obliged to report it and act against it through given channels.
Instead, the whole system is geared to accepting it and covering it up.
At the judicial level, complying with the culture of the PTA and ERs has
led to a progressive degeneration of judicial functions, exacerbating
ethnic and social inequalities.

The case above occurred at the tail-end of the regime responsible for
the disappearances in 1996. Already pressure was being mounted on the
Government to account for hundreds of missing persons in Jaffna and
things were slowing down.

General Janaka Perara who had been in charge of 51 Division (Valikamam)
had finished his term in Jaffna at the end of December 1996 and General
Lionel Balagalle was taking over. In the next few weeks General
P.A.Karunatilleke who was in charge of 52 Division was to take over from
General Srilal Weerasooriya who was in overall command of Jaffna, and
Brigadier Chula Seneviratne was to take over 52 Division. The year 1997
saw a drastic improvement with disappearances coming down to a small
number. The victim above owes his survival to a slowdown brought about
by pressure on the Government. It is hard to think of torturers drilling
and driving nails into a person whom they expected to be released. In
the matter of 'missing persons', the Government machinery has enough
practice in getting away through sheer procrastination. A 'torture
victim' on the other hand cannot be talked away by appointing sham
committees. This victim gives us a graphic picture of what happened then
in Jaffna behind closed doors and in isolated premises. The top brass
certainly had a good idea of what was going on.

4. The State & Missing Persons

Although more than 300 persons taken into custody by the Army in Jaffna
are acknowledged to be missing, the matter became a hot issue only after
the allegations about graves in Chemmani. The reason is that a body
excavated and identified admits a legal process. A person merely missing
or a body unidentified does not. For example in the case of the Bolgoda
Lake victims, the corpses are evidently unidentified. But the Police who
had extracted confessions from STF men, announced at a press conference
at the end of August 1995, that these same persons were killed at the
STF HQ and gave graphic details of how they were killed. What we now
have is a stalled legal process over the issue - virtually stalled for
ever, with the killers on bail.

Out of the 550 Jaffna cases the Board of Inquiry had not traced, one may
one day find that the odd person had been released and is now in Canada.
But one is pretty sure after more than two years that a large number of
them had been killed. There may only be a fraction of the remains in
Chemmani, while most of the bodies are likely to have been disposed of
in lavatory pits of vacant houses or buried in earth at the back of
camps.  This uncertainty enables the State to play conjuring tricks with
the issue, doing nothing while giving assurances and letting things drag
on. The Commission Report on Disappearances in the North-East during
1988-94 does not hold out much hope of accountability. A part of the
reason is that there are no local organisations or political parties
organising the people and helping them to persist. Anyone going too far
with Human Rights to build up a mass movement would be marked by the
LTTE. Mass movements are hard to control and are bound to start looking
at wider issues. Although there are thousands  who witnessed the arrests
of 173 persons at Eastern University during September 1990, unlike at
Embilipitiya not a single body was found. The Defence Secretary then
claimed that only 31 were detained and they were all released.

The Commission sent lists of missing persons to the Army, which merely
said that they had no records. But the Commission itself accepted that
they were missing and lists of missing persons comprise a significant
part of the Report. Relatively a few, and most of them low ranking,
officers have been named. Some of the most obvious leads have been
missed.

For example the disappearances from the Eastern University (159 on 5th
September 1990) are well established. The letter written by then
Secretary, Defence, Air Marshal Walter Fernando is available. General
Gerry Silva visited the University 3 days later on the 8th, met leading
persons in Batticaloa, implicitly accepted the arrests, did not contest
the figures, and spoke to the effect that those detained were guilty!
General  Silva later became Army Commander and is now Ambassador to
Pakistan. Brigadier (later General) P.A.Karunatileke, then at
Valaichchenai, arrived for the meeting but did not say a word. Those
detained had been taken towards Valaichchenai, then under Karunatilleke.
The Commission too has failed to question the leading figures implicated
in this affair such as Fernando and Silva who had much explaining to do.
[See our Report No.7 of 1991]

In the case of the Sathurukondan massacre (9.9.90) too the Commission
names three captains Warnakulasooriya, Herath and Wijenaike. Here 184
villagers were taken to a camp from their homes and set upon with swords
and knives. Testimony about it came from one survivor (our Report No.8
of August 1991). This area is barely 3 miles from Batticaloa Town.
Surely those higher up had to answer for this. The camp concerned was
later identified as the Boy's Town camp where some remains were found.

Again in the Amparai area the Report gives an account of the grave
nature of the violence by the security forces. But no officer has been
named. In our Report No.4 we stated that three leading citizens from
Thirukkovil including the RC and Methodist clergymen went to meet
Colonel Fonseka who had led the Sri Lankan troops into Akkaraipattu in
July 1990. They asked him for some assurances. He told them that he
would take their youth, screen them and release them. Having got an idea
of the killings in Akkaraipattu, they did not trust him [see our Special
Report No.3 of October 1990]. They quickly went southwards and met the
STF column and found the officer Ratnayake who had earlier been in
Thirukkovil, and invited the STF  to take over before the Army arrived.

Colonel Fonseka had earlier led the advance into Kalmunai, where
hundreds of youths were rounded up and killed. A professional man and
his wife made a desperate bid to save their only son who  was picked in
a round-up. We quote from our Report No.7 : ".... The sentry put them
through, thinking from their middle class bearing that the officer was
known to them ... The officer (Colonel Fonseka) finally replied, "I will
release him because he is your only son. If you had another son, I
certainly would not release him". There was no question of whether he
had LTTE connections. All that mattered was that he was Tamil. In
judging the officer, it must be kept in mind that in an affair of low
humanity, he came up at least to this level."

The officer is now major general. The Commission Report lists 342
disappearances from Kalmunai and Pandiruppu. The worst happened just
after the Army arrived.

We had also reported on conditions at Plantain Point army camp,
Trincomalee during1990, when Colonel Tennekoon was in charge. Conditions
were quite notorious. When prisoners were brought to the jetty, howling
soldiers would receive them, hitting away with hammers and various
gadgets. They were often persons randomly picked up because they were
Tamil. One detainee, Babu, went insane after being hit on the head with
a hammer and later died. An elderly retired teacher, Ratnam Master from
Nilaveli was brought to Plantain Point for refusing to give cattle to
home guards. He died there of an untreated septic wound from rubber
being would around an arm and set on fire.

The Commission questioned Tennakoon about scores of persons removed from
Trincomalee Hospital and MC Heyzer Stadium, along with other cases.
Colonel (now Brigadier) Tennekoon was recorded as telling them : "I
cannot say what happened to the records maintained by Brigadier (Lucky)
Wijeratne. I cannot speak as the records were with Brigade Commander
Wijeratne and operations were conducted by the late Wijeratne and
Superintendent of Police Wijesekera, who is also no more". The
Commission found this highly unsatisfactory.

This is about the furthest the Commission got in getting the State to
respond in any particular case. It also illustrates the limitations and
handicaps faced by such commissions. Had Civil Society and the Press
been more conscientious, publicised the issues, written investigative
books or reports and kept them alive, the Commission would have found
its task easier. Our own reports reached a limited circle and then
received little publicity in the newspapers. 'Someone Else's War' based
on these reports came as a book in 1994, in English and Sinhalese, by
when it was received with the comfortable, but wrong, assumption that
things had changed. It is hard for a Commission by itself to stir up
gentlemen whom everyone takes for granted as distinguished public
servants and heroes, and question them about complicity in mass murder.

By comparison the Commission Reports with respect to the Central, North
Central, North Western and Uva Provinces [C] and Southern, Sabragamuva
and Western Provinces [S] have come out as comprehensive documents. One
reading these would get a clear picture of the nature, sources,
political undercurrents and social effects of the violence.

Interim Report II of [C] tells us : "In some cases lists of persons
appear to have been given by politicians who belong to the UNP. In most
cases the evidence reveals that the persons involuntarily removed were
either SLFP organisers or active supporters of the SLFP. It seems that
political opponents of the then regime were eliminated under the guise
of crushing the JVP.
 

Interim Report IV of [C] names some of the leading politicians mentioned
in connection with disappearances in the area under reference : " ...
F.D.Mahindasoma, Chief Minister, NCP, A.M.S.Adhikari, Cabinet Minister,
H.G.P.Nelson, MP for Polonnaruwa, stand out."

[S] cites examples pointing to the politicisation of the security
services. One is the rise of Udugampola from IP in 1977 to DIG in 1988
over 180 others. Former IGP Cyril Herath is quoted : " I saw plans to
use the police force in the narrow interests of politicians. It was
clear to me that alternative structures of command were being put in
place within the police force for that purpose." The experience of
Daluwatte the former army commander is cited to which reference will be
made later.

An important lead that [S] tried to follow up was the disappearance
while in police custody of Tarzan Weerasinghe, a key suspect, an event
featuring prominently in the conclusions of the Vijaya Kumaratunga
Assassination Commission. A sister of Tarzan Weerasinghe's told the
Commission of having been informed by the ICRC of information given to
them by a co-detainee that her brother had disappeared under CID custody
in March 1990. The ICRC had refused to disclose to the Commission the
identity of the witness.

Of the 8739 cases reported to [S], 8543 were males. In violence
pertaining to the JVP era dealt with, 4858 disappearances were caused by
State and paramilitary forces, 779 by the JVP, 59 owing to personal
enmity and 1543 unknown.

One is immediately struck by a key handicap faced by the North-East
Commission, apart from the lack of help from Civil Society. In the South
a fair deal of the violence pertained to supporters of the SLFP and the
Traditional Left, presently in government. The Commissions were
therefore able to use trusted police officers to conduct investigations
and party supporters to give information without fear.

This was not possible in the North-East. The victims largely belong to
an ethnic group having next to no influence in the state structures, and
in this case there is hardly anyone in the Police or the Army motivated
or willing to go out of the way and risk being branded a traitor to
ferret out information about the incidents. Whenever confronted with
official obfuscation, the North-East Commission was up against a blank
wall. We are now left with several absurdities.

The most precise and succinct report on the Eastern University
disappearances, clearly indicating where the blame lies, is contained in
the Human Rights Task Force Report (August 1992 - August 1993) issued by
the Chairman Justice JFA Soza.

The HRTF Report said that many of the soldiers involved came from HQ 8,
Valaichenai, then under Brigadier Karunatilleke. The officers implicated
are Captain Kaluaratchi, Chenkalady (Kommathurai); Munas alias Richard
Dias, NIB Batticaloa ; Major Majeed, C.O., Valaichenai and Major Mohan
Silva, Batticaloa. The Report also said that an SLBC news bulletin on
7th September (two days later) announced that 148 persons from the EU
camp were taken into custody by the Army for inquiries. In response to a
letter from GA Batticaloa about 22.10.90, Major S.Seneviratne of HQ 8
Brigade Group, Valaichenai Paper Mills, said in his reply of 29.10.90
that during the troop round up over 200 inmates of the EU refugee camp
were questioned, but no one was detained. Both these official versions
contradicted each other and the Defence Secretary's claim referred to.
Further, the Defence Secretary's letter gave a list of 31 persons whom
he said had been released within 24 hours. No 18 in the list was
N.Stanley (35) of Vantharumoolai. Stanley's wife appealed to the
Presidential Mobile Secretariat held in Batticaloa during July 1993
about her husband. She later got a reply on cyclostyled paper, saying
that he was never taken.
 

A clear case had been made to begin prosecutions. But Justice Soza,  a
former supreme court judge; complained a year later in his next HRTF
report that no action had been taken. Now we have another commission
report, four years after Soza's, referring to the same matter again, but
with less clarity. So much for the institutional memory of the AG's
department. One wonders whether these reports are meant only to keep the
AI and UNCHR dogs from barking, but with no action intended.

The recent N-E Commission Report, which includes a memoir from Patricia
Lawrence  of Denver Law School, earlier a researcher in Batticaloa,
contains a fairly full account of the Sathurukondan disappearances.
After taking the survivor, Krishnakumar, to the area in a vehicle and,
not surprisingly, finding nothing, Colonel (now Brigadier) Percy
Fernando (then in Batticaloa HQ 3) got the chairman of the Batticaloa
Peace Committee, to sign a statement that there is no evidence of a
massacre. The AI pursued the matter, General Wanasinghe, earlier army
commander and then defence secretary promised a prompt and thorough
investigation, but nothing happened. So here it is, 184 villagers taken
by the Army  just disappeared into thin air and some bones turned up
later in the nearby Boy's Town, then used by the army. The army captain,
Warnakulasooriya, then in charge, who was questioned by the N-E
Commission, completely denies it. General Wanasinghe to whom the AI
wrote and Brigadier Lohan Gunawardene in Batticaloa to whom (in 1994) it
fell to inquire, did not deny it, but never reported their findings.

The Brigadier in charge of Batticaloa HQ 3 during the Sathurukondan
massacre was A.M.U.Seneviratne, later major general and now retired. One
might also mention here that General Gerry de Silva, who was in charge
of the East then, visited the Eastern University the previous day (8th
September 1990) and implicitly justified the disappearances. He would
also have passed through Sathurukondan on his way there from either
Batticaloa or the airport, a village not knowing the harrowing fate that
awaited it the next day.

In Pottuvil, where the Commission lists 154 disappearances from this
area, the refugees who fled to Komari were given assurances and asked to
return by the STF at July end 1990. Shortly after they returned 120
persons were taken in a round up by the STF and Police [our Special
Report No.3 of October 1990]. Thereafter billows of heavy smoke were
seen rising from the local police station. One person who should be held
directly answerable for this outrage is Lionel Karunasena (SP, later
DIG), Commandant STF. The STF was then directing operations from its
centre in Arugam Bay, just south of Pottuvil. The victims were from a
community of farmers and labourers, who are still living under
oppressive conditions. No one speaks for them. If they cannot bear it,
the LTTE is there to use them. As for the outrage - no investigation, no
case.

All these cases from the North-East are similar to the disappearances in
Jaffna, well-documented and for the most part well-witnessed. The ones
in the East have the additional feature of being the disappearance of
more than a hundred people in each case, within a matter of hours. In
Sathurukondan, many of the 184 who disappeared were women and  children
(69 of them 12 years and under). As public as the incidents were, and
the agents identified, the main legal drawback appears to be that no
bodies have been found (only a handful in Jaffna till now). Burning
bodies now is asking for trouble, but in the early 90s in the East, it
was common. Unlike in the South, information from inside the Forces may
be long in coming. During the 1995 peace talks, a member of the Forces
came to a Sinhalese weekly and unburdened himself on cannibalistic
orgies with prisoners in the East that he had witnessed, in which he
associated the famous man from NIB Batticaloa. But once the war resumed
he stopped visiting the weekly.

Another case of mass graves in the North that has not received much
publicity concerns those in the Islands, especially Mandativu. This area
was taken by troops under General Kobbekaduwe in August 1990, and has
since been under the control of the Government. Up to 125 civilians were
killed after capture (our Special Reports 1  & 2 of September 1990).
Civilians who went back to their homes near a church in Mandativu
(Philip Neri's Church), found bodies in wells. The area was then sealed
off.

By present trends all these cases of mass killing will never have a
judicial hearing and will go unpunished, but the Government will never
say so openly. To try them may require new laws which would lead in
effect to a war-crimes tribunal. These cannot be treated as individual
crimes, although a small handful of those missing may have survived by
some freak chance (see appendix to this volume). But after four or five
years there can be little hope. Some procedure similar to those for
issuing death certificates for disappeared persons must also be made
applicable for judicial hearings.

Neither should the failure to locate and identify the corpses allow the
security forces to  make a plea for the benefit of the doubt in the
cases where arrest or abduction is established beyond doubt. There had
always been agreed procedures for the release of those detained. In
Batticaloa the Peace Committee used to be called to witness a release.
This was well before the Eastern University abductions. In Jaffna it
used to be village headmen or the courts. When an agreed procedure for
release was not observed the onus of proof rests with the State. Failure
of the Forces to maintain records of arrest should be made punishable
rather than allow it to become a means of evasion.

4.1 Concerns about investigations into graves in Jaffna

Since the disclosure made in Court on 3rd July 1998, a press release
from the Presidential Secretariat was published in the Press on 16th
July '98. It said that the investigations into alleged mass graves at
Chemmani had been handed over to the Human Rights Commission. It is also
well known in Human Rights circles around the world that the Human
Rights Commission of Sri Lanka (HRC) had written to Mrs. Mary Robinson,
UN High Commissioner for Human Rights (and former president of the Irish
Republic), seeking the assistance of the Office of the High Commissioner
for Human Rights in the identification of human remains in the context
of investigations currently undertaken by the HRC.

In its reply of 27th August the OHCHR in Geneva had expressed its
willingness to assist in this matter, 'with a view to ensuring that the
identification and investigation of corpses are carried out in
accordance with the established international practices and standards'.
The OHCHR however wanted the HRC to ascertain the following: Approval
from the authorities of Sri Lanka; Free access, protection and safety of
personnel on the site of excavation and elsewhere; Guarding of the sites
and equipment; Responsibility for the mortal remains of victims after
identification including burial. The letter was signed by Rita Reddy,
Chief, Activities and Programmes Branch.

Following this there was much talk and speculation about the OHCHR not
having heard again from the HRC for close upon 8 months. We reliably
understand that the HRC had written to President Chandrika Kumaratunge
in September, conveying the OHCHR's offer and calling for her response
in respect of the conditions. President Kumaratunge's office was sent
reminders, but to no avail. Letters and reminders were also sent to the
Minister of Foreign Affairs and the Attorney General, without receiving
anything concrete.

Here we have a situation where the President's appointment of a Human
Rights Commission is negated by apparent obstruction from her own
office. The purpose and credibility of the HRC are placed in question if
the mere fact of failure to receive a reply from the President can throw
it into limbo, after having done its preparatory work.

This is the first time there has been testimony about the remains of
disappeared civilians in the North - East, and delay could place the
location of remains in jeopardy. Corporal Rajapakse's terms are
unambiguous :  "Take me to Jaffna and dig where I point in my presence".
This too would ensure that there would be no digging in the wrong place
and finding nothing. Delay also opens the possibility of something
happening to him, or for some reason his going back on his earlier
resolve - a resolve he had expressed two years ago in early 1997 before
the trial commenced. This too was no doubt known to the state apparatus
quite early.

On 5th March a team including a magistrate, a forensic scientist, and a
representative from the AG's office went to Jaffna and collected a soil
sample, but without Rajapakse. It has now been announced that Rajapakse
will be taken to Jaffna on 15th June. There are bound to be further
inexcusable delays. The forensic scientist from Galle who went on 5th
March has said that he would not be able to go to Jaffna on 15th June
owing to an engagement abroad. In the meantime willing foreign experts
have been prevented from coming, who would also have provided valuable
training to practitioners in Jaffna who are quite cut off. No word has
yet been given in response to the offer of foreign assistance.
Admittedly, the task of collection and identification would be a
delicate one, and local forensic practitioners could only gain by having
those from abroad with wide experience. Another group suggested has been
the Boston based "Physicians for Human Rights", whose teams of
pathologists, physical anthropologists and archaeologists have worked on
grave sites in El Salvador, Argentina, Bosnia, Cambodia and elsewhere.
This gives a picture of the task involved.

There are also some very real concerns about the Attorney General's
department handling the matter of Jaffna graves. We have no problem with
their academic credentials. But we have a problem with their job
description, training and mental habits that have set in over the years.
This particular combination of attitudes to Tamil civilians, Tamil
suspects, the security forces and interests of the State go back to the
PTA of 1979.

In the two Welikade prison massacres of July 1983, the evidence at the
magistrate's inquests  was led by DSG Thilak Marapone assisted by Senior
State Counsel C.R.de Silva. Many important and obvious questions were
not posed, and the evidence was led in a selective manner to support the
conclusion that the Tamil suspects were killed in  spontaneous prison
riots. The case was not pursued. At present C.R.de Silva in the DSG
(Deputy Solicitor General) dealing with criminal matters. Among the
routine tasks of the AG's department is to prolong the detention of
Tamil suspects by framing charges which any judge with professional
self-respect should throw out in the first instance. A common one is
that the suspect knew the whereabouts of some terrorist, but failed to
inform the Police. It is the sort of charge that the suspect confesses
to, whether true or not true, after being harassed by a series of
detention orders under the PTA, and a trial that the prosecution drags
on indefinitely.

We now take some cases pertaining to Tamil victims that we had earlier
touched upon. We give below observations from Justice J.F.A.Soza's 2nd
HRTF Report (10th August 1993 - 10th August 1994). Justice Soza's
remarks pertain to inaction regarding cases investigated by him and
presented in his 1st report :

Eastern University disappearances of September 1990 : "The perpetrator's
of this dastardly crime have been identified and named by me in my
previous report, and although credible evidence is available, no inquiry
whatsoever has been initiated into this incident, where as many as 158
persons were arrested and have disappeared and must be presumed to have
been killed extra-judicially. Parents and relatives and the public of
this area are living in anguish over the loss of their loved ones. The
State remains unmoved and as inscrutable as the Sphinx."

Sathurukondan,  9.9.90, 5.30 PM, where among the 184 victims were 9
babies, one as young as 3 months : ".... One of the victims claimed he
saw the women and children being separated from the men. The men
including himself were lined up and shot and then burnt...  The Chairman
of the Batticaloa Peace Committee is one of those who initiated the
inquiry. But he had been overawed into signing a statement [by Colonel
Percy Fernando] that no such incident took place...  It is said that 68
children in all were killed. It was a veritable massacre of innocents.
The International Community and Amnesty International have expressed
grave concerns about it and have alerted the Government. How can we
claim to be a civilised society and allow this incident to pass without
a credible investigation?"

It is close to 5 years since Justice Soza's comments were written, and
their application remains unchanged. They are a stinging indictment of
the legal process in this country for which the AG's department must
take a considerable part of the responsibility.

The case of Bodies in Lakes strangled at STF HQ, mid 1995 : The
revelations by detained personnel were presented at a press conference
by the IGP. In February 1996 the suspects were released on bail. Later
in the year the Attorney General told the Press (Sunday Leader 1.9.96)
that foreign experts had been engaged to identify the bodies and that
the matter would be concluded soon.

About the last press reference to the matter was made in a Sunday Times
report of 4th May 1997 by Shyamal Collure and S.S.Selvanayagam under the
title 'Government Analyst's Department report available shortly'. It
said that the case involving 22 STF personnel had been taken off the
roll call at the Colombo Magistrate's Court recently. Vasudeva
Nanayakkara MP was quoted accusing the AG's department of non
co-operation in the proceedings. The AG's department, the report said,
maintained that the delay was due to the non-availability of two
reports. One from the GAD and the other from forensic experts of the
University of Glasgow. Other sources were quoted saying that the
proceedings could have been expedited only if one or more of the AG's
department, the Police and the Courts, had requested it. The GAD, it
said, did not in general do an 'out of turn' investigation unless a
request was made.

All this suggests that the Attorney General had been misleading when he
said 8 months earlier that the matter would be concluded soon. Now it
seems to have gone out of the window.
 

We now take up a case where things moved exceptionally fast at the AG's
department and the Police even if justice was left limping way behind.
It is a case of a powerful interested party.

4.1.1 The Casino Murder:  In the early hours of 1st May 1997, two Papua
New Guineans Joel Pera,  the expatriate rugby coach of Havelocks, and
his friend Gideon Raka joined some local high society youths at Carlton
Casino, Colpetty. The local boys who included Deputy Defence Minister
General Anurudha   Ratwatte's son Lohan, all apparently a bit high in
spirits, quarrelled with Joel Pera on a trivial matter. Suddenly Pera
was on the ground being attacked by a gang of local youth and security
men including two from the casino security. Someone pulled out a gun and
shot Pera dead.

It was a case of immense diplomatic interest. Justice Minister
G.L.Peiris promised to expedite matters by holding a trial-at-bar. But
the Police started doing funny things from the start. Although Lohan
Ratwatte (LR) was named as being on the scene of the crime by several
witnesses, T.B.Dissanayake, DIG Colombo, was very reluctant to record a
statement from him. Witnesses who mentioned LR's presence at the scene
were abused by the Police interrogators. Srilal, a detained witness, in
his fundamental rights application described LR as a tall person wearing
a T-shirt who was at the scene of shooting. Gideon Raka described the
gun man as tall 28-29 years and wearing a striped T-shirt. But, being
himself shot at and assaulted, he soon had to flee.

Daniel, an electrician called in for some repairs, who was able to
observe as an outsider, placed LR on the scene, but described the gun
man as balding and not tall. The description suited LR's security guard,
Jagath. Several of those at the scene of crime left with LR shortly in
his car. They were LR, Jagath, Bobby, who was another youth at the scene
of crime, and three security men of LR's. No one else there was known to
have  had weapons apart from  LR's party. There was no suggestion that
Pera who was being attacked by a mob in a cowardly manner was in any
position to fight back, leave along having a gun. What had transpired
was in general terms fairly clear. Daniel upon giving his testimony was
assaulted by the Police.

LR surrendered to the Police more than three weeks later. Although LR
and his security man Jagath were principal subjects for investigation,
there was no attempt to apprehend LR early and subject him to standard
tests for the use of weapons. An identification parade was held in early
June, where Kumar Ponnambalam, the lawyer representing Pera's family
complained that he had been shut out. Certain questions, he said, were
posed to the witnesses, and the answers were recorded, but not the
questions, which evidently were of a leading nature. But other essential
questions were not posed. The file is said to have been sent to the AG
in a matter of hours, who recommended LR's release. The case has now
gone out of the window, leaving another huge blot on Sri Lankan justice.
[Most of the facts of the case can be found in the Sunday Leader, 11th
and 18th May 1997.] Well, if Joel Pera had been a Westerner, the Police
and the AG's department could hardly have acted in this way. This is one
murder for which no one will be hanged.

In the Chemmani case, several top brass of the Army and the Deputy
Defence Minister are interested parties. Given the record above, there
is serious concern as to whether the Police and the AG's department will
do a professional job. One is after all more likely to look for aspects
of the evidence to make the connections, if one is motivated to do so.
If not, connections are unlikely to be found, even if they are staring
at one's face.

Another mass grave has recently been discovered at Duraiappah Stadium in
Jaffna. The bodies could hardly have been buried there before late 1987.
The Indian Army was there until the end of 1989. The LTTE was in control
of the area from September 1990 to October 1995. Since then the Sri
Lankan Army has been in control. A crucial factor in  the determination
of the perpetrators is the age of the remains. The victims too need to
be identified. We cannot claim the dignity of being a people unless we
are interested in questions of our recent history and in questions of
justice. The vocal elements in Jaffna are for the most part silent on
this first of mass graves to come to light. They will become vocal only
when they are sure that these remains are not those of victims of the
LTTE.

At present who the perpetrators are is a very open question. The
investigation too must be seen to be open-minded. The Magistrate has
been allowed to exhume. But one of the very basic steps which should
have been taken was to have issued a public notice calling upon persons
who have reason to believe, or even suspect,  that the graves may
contain the remains of persons in whom they have an interest, to come
forward. This was not done. In the absence of such a step the field has
been left open to interested speculators. The forensic tests alone will
not be satisfactory since the gaps between the departure of one armed
party and the arrival of the next are small. It is public knowledge and
testimony that will be the determining factor. Thus the present
excavations at Duraiappah Stadium are neither satisfactory nor
professional.

Moreover  the situation in the North-East is one where the ordinary
people can speak out only at their own peril. They know who killed the
elderly widow whom the people elected mayor of Jaffna, her successor,
and many other harmless persons who were elected as local councillors.
The Magistrate who is handling the exhumations at Duraiappah Stadium can
work when the LTTE allows him to work, and must stay at home when the
periodic warning letter comes.

There are several more mass graves in the North-East. The dignity of the
people demands that they should be investigated impartially. If the
manner of investigation of the Chemmani graves is called into question,
there can hardly be a credible investigation of the other graves
afterwards. There is no alternative but to accept the offer of the OHCHR
and also invite others with experience and a reputation for
professionalism.
 
 

4.2 Unanswered Questions About 1990 Operations in The East

If there  can be no justice, it would make a mockery of accountability
and the rule of law. And it is bound to happen again, as what was deemed
over in 1993 when the worst in the East was past, happened again in
Jaffna in 1996. Moreover, if bringing the killers to book turns out to
be an elusive quest, future generations may see these events as an epic
ghost story.

A particular gut reaction to the claims of a mass grave in Chemmani came
from some normally balanced writers in the South. This was a demand to
parallelly excavate the mass grave at Rufus Kulam, off Thirukkovil,
where about 300 policemen, who surrendered to the LTTE on assurances,
were cynically murdered in cold blood and buried as a calculated
provocation. This was on 12th June 1990. The predictable brutality
towards the people unleashed by the State sent a windfall of recruits
into the LTTE's depleted ranks. This gut reaction also shows how
difficult it is for many in the South to see issues for what they are.

There is no mystery about the Rufus Kulam graves. The bodies were found.
A procession of trucks with security personnel, religious personages and
local community leaders went into the interior to conduct observances at
the site in early 1991. On the way security personnel in one vehicle
pulled in some peasants they were passing and knifed them. This had held
up the procession for some hours.

 The Chemmani graves are an entirely different matter. The gut reaction
mentioned loses sight of the State as one that ought to be multi-ethnic
and uphold the law impartially. If one tries to avoid the issue of
Sinhalese troops having unlawfully killed Tamil civilians by trying to
balance it with Tamil Tigers breaking their  word and killing Sinhalese,
then the argument for a united Sri Lanka is lost.

During the early 90s when violations by the State seemed part of
government policy, we did also record instances where officers of the
security forces maintained discipline and acted with concern for the
civilians. Among these are :

Colonel Halangoda in Kaluwanchikudy (1990 end and early 1991 in Report
No.7) : This was about the first time reprisals against civilians were
avoided as a matter of policy.

Major (now Brigadier) Rockwood was posted to Monkey Bridge camp on the
Trinco-Colombo Road about September 1990, after which disappearances at
that point stopped (our Report No.10).

Inspector Vahalathanthri of Akkaraipattu Police (early 1991) : He took
over a police unit where discipline was at  a low ebb, enforced respect
for civilians and had to live through a mutiny. (See Report No.7)

Brigadier Srilal Weerasooriya (Mannar, February 1991) : Notable
improvement of discipline (Reports 7 & 9)

Brigadier Kalupahana and Colonel Tennekoon in Vavuniya : Notable
enthusiasm shown by civilians, with tremendous easing of tension during
their tenure in 1992 & 93. During this time Colonel Tennekoon's
reputation became the reverse of that during his Plantain Point days.
His subsequent reception in 1995 as Brigadier in Mannar too was
enthusiastic. On occasions Brigadier Tennekoon's direct intervention at
tense moments ensured the protection of civilians. There was
considerable anxiety at his impending departure.

We now come a particular question which highlights the lack of
information, objective journalistic coverage and analysis of events. For
example we do know that during the JVP uprising in the late 80s, lists
of persons (often democratic opponents) were given to co-ordinating
officers of regions who had been told, "Those involved in subversion
must attain 'Nirvana'". The Army and STF advanced into the East in June
1990, after President Premadasa declared that what happened to the JVP
will happen to the LTTE. What then happened strongly suggests that the
security forces were acting on instructions to thin down the Tamil youth
population. Against the JVP the Government had several sources of
information. But this was not possible against the LTTE, and massacres
of youth picked up at random were quite regular. The LTTE's calculated
attacks on Muslims enabled the Government to make the Muslims
scape-goats for the killing of Tamils, by taking armed Muslim home
guards on round ups. We also do know that Deputy Defence Minister Ranjan
Wijeratne was again closely involved with the developments.

We may also mention here the observation made by a member of one of the
Southern disappearance commissions. She commented on the steep rise in
killings by the State forces when the tide turned against the JVP during
the final five months of 1989. Little or no discretion was employed in
the choice of victims in selected rural areas. It was deliberate terror,
a way of asserting control and showing who is boss.

Thanks to the LTTE's machinations, these same troops entered the East
almost immediately afterwards, with no possibility of employing any
discretion in arrests.

But we know very little about the inner workings, the role of the
cabinet, who decided strategy and what orders were given. We do also
know that it was a bloody fiasco of incompetence which left the LTTE
much stronger. In any self-respecting democratic country journalists and
analysts would have tapped inside information and written books. Yet in
this country where papers are full of articles about ancient history and
historical claims, we are almost equally in the dark about insidious
developments in the South itself. This silence about crucial events in
recent history is part of the pathology representing post-independence
political culture which encourages impunity. This will be taken up in a
coming series commemorating 50 years of the Universal Declaration of
Human Rights.
 

Appendix

Two cases of Disappeared Persons Subsequently Seen

Stanley Arunachalam

Stanley Arunachalam was the minister (pastor) at Grace Faith Church,
Trincomalee. During the outbreak of war in June 1990 he was visiting his
parents in Pusellawa in the Hill Country. He had recently married and
his wife was expecting their first child. He tried to return to
Trincomalee, and was last seen near the Kandy bus stand from where there
are direct buses to Trincomalee. He has since been missing, though he
had absolutely no LTTE affiliations.

In late 1992  M    (18 years) was travelling from Valaichenai to Colombo
by train. This was after the LTTE had attacked the Muslim village of
Alinchipotanai, and there had been reprisal attacks on a Tamil village.
He was arrested by the Police who claimed that he had been pointed out
by a Muslim, and they accused him of taking LTTE hit men to Colombo.
They found in his bag a group photograph taken with Minister S.
Thondaman at a school function at St.Joseph's, Maskeliya. Claiming that
Thondaman was an LTTE agent, he was taken off the train at Mannampitiya,
questioned, and then sent to prison in Anuradhapura.

According to him when the ICRC once came, he was sent to the kitchen, as
was done earlier, when they arrived, but he surreptitiously contacted
them by going to the toilet. The ICRC came again in the afternoon, took
his particulars and informed his periamma (mother's elder sister).

After that M was allowed out to clean the prison compound. Once his
companion pointed to a building they knew as 'Upparima' and said  that
proven LTTEers  were held there, and told him not to look in that
direction, for a mean,  unpleasant man would come out of the kitchen
with a knife and threaten them.

One day while cleaning the compound, M rested under an 'Aalai' tree,
when he was joined by a man who, after cleaning toilets, came with
bucket and a wire brush. He was about 5ft 2 inches in height and
explained that he was Pastor Stanley from Trincomalee and that he had
been taken in during 1990 when his wife was expecting a child. According
to him, he was pointed out as LTTE by someone who had a grudge against
him after leaving Kandy railway station.

Stanley wanted M's help when he got out of prison and explained that  he
had been badly tortured and had no hope of being released. He told M
that if anyone saw them speaking and questioned  him, he should say that
they were discussing the food. Stanley also said that whenever the ICRC
arrived, he was in a group of persons who were always taken into hiding.
Another thing he said is significant : that there were many Tamils who
were brought there and taken away within a few days. When they parted,
Stanley told  M that he would give him a letter to be delivered to his
wife when he is released.

M was released five days later. For two days before his release he was
not allowed out into the compound, and so left without seeing Stanley
again. M later met people close to Stanley, and his story tallied with
Stanley's background. He also identified Stanley from a photograph shown
to him. All this was communicated to the ICRC who tried hard. was never
seen again. His widow and eight year old daughter, whom he never saw,
now reside in Trincomalee.

The Slave

S was a youth  detained  by the Army in a provincial town in July
following the outbreak  of war in June 1990. About an year later, in
October 1991, his father saw him near an army vehicle that was parked
outside a doctor's dispensary. The father who went towards his son, was
signalled by the latter to stay away. The parents have reliable
information that the son is being used as a slave craftsman.

In this instance the name of the NCO who arrested him, the number of the
vehicle in which he was seen and the name of the officer using the
vehicle at that time are all known. His probable domicile  now is said
to be an army camp in the South.

Such cases are not isolated. There was the case of Kumar, a domestic of
Hill Country origin, who was detained in early 1997 in Jaffna. The Army
announced through the newspapers that he was in their custody and would
be released. When a relative of his employer went to collect him, the
Army said that they had not taken him.

The late Trincomalee MP A.Thangathurai had received complaints from
ex-detainees that they had been taken to the South to work on a new
house being built for a one-time brigade commander for the area. In some
of the cases, such as Stanley's above, their problem may be that they
had seen too much.
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