US embassy cable - 05COLOMBO1034

UNCLAS SECTION 01 OF 03 COLOMBO 001034 
 
SIPDIS 
 
DEPARTMENT FOR SA/INS 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PHUM, PGOV, CE, Human Rights 
SUBJECT: SUPREME COURT OVERTURNS CONVICTIONS IN LANDMARK 
HUMAN RIGHTS CASE 
 
 
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SUMMARY 
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1.  (SBU)  ON MAY 27, THE SUPREME COURT OF SRI LANKA 
EXONERATED THE FOUR REMAINING MEN CONVICTED OF PARTICIPATING 
IN THE BINDUNUWEWA MASSACRE OF OCTOBER 2000, WHICH LEFT 27 
TAMIL YOUTHS DEAD AND 14 INJURED AT A DETENTION CENTER IN 
BADULLA DISTRICT.  THE FIFTH SUSPECT WAS ACQUITTED IN JULY 
2004.  THE ORIGINAL CONVICTIONS HANDED DOWN BY THE HIGH 
COURT WERE OVERTURNED ON APPEAL, ON THE GROUNDS THAT THERE 
WAS INSUFFICIENT EVIDENCE TO CONVICT THE FIVE SINHALESE 
SUSPECTS.  AS A RESULT OF THE RULING, NO ONE HAS BEEN 
CHARGED IN THE HIGH PROFILE AND ETHNICALLY SENSITIVE CASE, A 
SIGN OF THE INABILITY OF THE JUDICIAL SYSTEM TO HOLD GUILTY 
PARTIES ACCOUNTABLE FOR HUMAN RIGHTS VIOLATIONS.  THE 
FAILURE OF THE GOVERNMENT OF SRI LANKA (GSL) TO IDENTIFY THE 
PERPETRATORS AND PUNISH THEM WILL ADD TO THE GRIEVANCES OF 
THE TAMIL COMMUNITY AND COULD AGGRAVATE MISTRUST ACROSS 
ETHNIC LINES.  END SUMMARY. 
 
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SURPRISE ACQUITTALS 
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2.  (U)  ON MAY 27, THE SUPREME COURT OVERTURNED THE 
CONVICTIONS OF THE REMAINING FOUR SUSPECTS TAGGED WITH THE 
KILLINGS OF 27 TAMIL INMATES AT A DETENTION CENTER FOR 
UNDERAGE LTTE CADRES IN OCTOBER 2000.  THE INMATES INCLUDED 
THOSE WHO WERE SEEKING ASYLUM FROM THE LIBERATION TAMIL 
TIGERS EELAM (LTTE) AND THOSE SUSPECTED OF BEING LTTE CHILD 
SOLDIERS, RANGING IN AGE FROM 10 TO 31.  THE ATTACK OCCURRED 
ON OCTOBER 24, 2000, WHEN INMATES AT THE BINDUNUWEWA 
DETENTION CENTER IN BADULLA DISTRICT BEGAN TO COMPLAIN THAT 
THEY WERE BEING HELD PAST THEIR EXPECTED DATE OF RELEASE. 
AFTER THE COMPLAINTS ESCALATED INTO A PROTEST, A SHOT WAS 
FIRED BY A POLICE OFFICER AND AN INMATE ATTACKED ANOTHER 
POLICE OFFICER.  THE FOLLOWING MORNING, VILLAGERS INVADED 
THE CAMP AND CLUBBED, STABBED, AND BURNED INMATES ALIVE, 
KILLING 27 AND WOUNDING 14.  ACCORDING TO EYEWITNESS 
TESTIMONY, THE POLICE OFFICERS DID NOTHING TO PREVENT THE 
CROWD FROM ATTACKING THE INMATES AND SHOT SOME OF THE 
INMATES TRYING TO ESCAPE THEIR ATTACKERS.  FURTHERMORE, THE 
POLICE REPORTEDLY PLACED TEAR GAS IN A NEARBY QUARRY SEVERAL 
DAYS AFTER THE ATTACK, FAILED TO SUBMIT ALL PHOTOS TAKEN BY 
A POLICE PHOTOGRAPHER AFTER THE INCIDENT, AND HID THEIR DUTY 
LOGS IN AN ATTEMPT TO MASK THEIR INACTION AND MISTAKES. 
 
3.  (SBU)  ON MARCH 8, 2001, PRESIDENT CHANDRIKA 
BANDARANAIKE KUMARATUNGA APPOINTED A PRESIDENTIAL COMMISSION 
TO INVESTIGATE THE BINDUNUWEWA MASSACRE TO DETERMINE THE 
INDIVIDUALS RESPONSIBLE FOR THE ATTACK.  THE REPORT ISSUED 
TO THE PRESIDENT BY THE PRESIDENTIAL COMMISSION RECOMMENDED 
THAT DISCIPLINARY ACTION BE TAKEN AGAINST THE FOLLOWING 
POLICE OFFICERS FOR DERELICTION OF DUTY: A.W. DAYARATNE, 
R.M.T.K. JAYANTHA SENEVIRATNE, S.J. KARUNASENA, N.G.S. 
WALPOLA, T. RATNAYAKE, K.W.C.N. ABEYNARAYANA, Y.K. 
ABEYRATNE, AND P. ABEYRATNE. 
 
4.  (U)  IN JULY 2003, THE HIGH COURT OF COLOMBO CONVICTED 
THREE VILLAGERS AND TWO POLICE OFFICERS OF PARTICIPATING IN 
AN UNLAWFUL ASSEMBLY.  CIVILIANS D.M.S DISSANAYAKE, M.A. 
SAMMY, AND R.M. PREMANANDA WERE SENTENCED TO DEATH ALONG 
WITH POLICE OFFICERS J. KARUNASENA AND T. RATNAYAKE. 
ALTHOUGH IT WAS UNCLEAR WHETHER THE POLICE OFFICERS INDICTED 
ACTUALLY SHOT THE INMATES, THEIR FAILURE TO ARREST OFFENDERS 
AND PREVENT THE ATTACK LEGALLY MADE THEM PART OF THE 
UNLAWFUL ASSEMBLY.  ALL FIVE APPEALED THEIR CONVICTIONS TO 
THE SUPREME COURT. 
 
5.  (U)  ON MAY 27, 2005, THE SUPREME COURT OVERTURNED THE 
COLOMBO HIGH COURT RULING, CITING A LACK OF EVIDENCE TO 
CONVICT THE FOUR MEN.  (SIMILARLY, THE SUPREME COURT HAD 
ACQUITTED T. RATNAYAKE IN JULY 2004 DUE TO INSUFFICIENT 
EVIDENCE.)   EYEWITNESSES CLAIMING TO HAVE SEEN THE 
CONVICTED MEN PARTICIPATE IN THE ATTACK RECANTED THEIR 
STORIES IN FRONT OF THE SUPREME COURT, THUS THE SUPREME 
COURT RULED THAT THERE WAS NO EVIDENCE THAT SUGGESTED GUILT 
ON THE PART OF THE FIVE SINHALESE INDIVIDUALS.  THE SUPREME 
COURT ALSO FOUND THAT THE HIGH COURT JUSTICES HAD MADE 
ERRORS IN HOW THEY ANALYZED THE WITNESSES' TESTIMONY. 
 
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EXPERT OPINIONS 
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6.  (U)  ON JUNE 2, HUMAN RIGHTS WATCH (HRW) ISSUED A PRESS 
RELEASE URGING A REINVESTIGATION TO IDENTIFY THOSE 
RESPONSIBLE FOR THE MASSACRE, INCLUDING TOP-LEVEL POLICE 
OFFICIALS.  THE HRW STATEMENT POINTED OUT THAT ALTHOUGH THE 
PRESIDENTIAL COMMISSION CITED THE LOCAL POLICE COMMANDERS 
DAYARATNE AND SENEVIRATNE FOR DERELICTION OF DUTY, THESE 
OFFICERS HAVE NOT BEEN INDICTED OR PUNISHED.  THE HRW 
STATEMENT ALSO SAID THE GROUP IS CONCERNED THAT THE SUPREME 
COURT DID NOT EXERCISE IMPARTIALITY, ACCUSING THE JUSTICES 
OF BEING OPENLY HOSTILE TOWARDS THE PROSECUTION. 
 
7.  (U)  ON MAY 30, THE ASIAN HUMAN RIGHTS COMMISSION (AHRC) 
RELEASED A STATEMENT CALLING FOR THE RESIGNATION OF THE 
INSPECTOR GENERAL OF POLICE (IGP) CHANDRA FERNANDO, IF HE 
FAILS TO INVESTIGATE THE DERELICTION OF DUTY BY POLICE 
OFFICERS IN THE BINDUNUWEWA MASSACRE.  THE AHRC ACCUSES THE 
SRI LANKAN JUSTICE SYSTEM OF BEING DEFECTIVE AND ENSURING 
IMMUNITY FOR OFFENDERS.  IN ADDITION, THE STATEMENT OF AHRC 
ENCOURAGED THE SRI LANKAN PEOPLE TO SPEAK OUT AGAINST WHAT 
IT DESCRIBES AS THE BIASED JUDICIAL SYSTEM. 
 
8.  (SBU)  SALIYA PIERIS, ATTORNEY-AT-LAW OF THE SUPREME 
COURT OF COLOMBO, TOLD A POLITICAL INTERN THAT HE BELIEVES 
THE RULING IS FAIR BECAUSE OF A LACK OF EVIDENCE.  THE 
INVESTIGATION SHOULD HAVE BEEN MORE THOROUGH AND THE 
INVESTIGATIVE UNIT SHOULD BE INDICTED, ACCORDING TO PIERIS. 
WHILE HE BELIEVES DISCIPLINARY ACTION SHOULD BE TAKEN 
AGAINST POLICE OFFICIALS, THEY SHOULD NOT BE CHARGED WITH 
PARTICIPATION IN AN UNLAWFUL ASSEMBLY.  THE POLICE HAD TRIED 
TO CONTROL THE CROWD, ALTHOUGH THEY DID NOT EXPECT AND WERE 
NOT PREPARED TO HANDLE THE FEROCITY OF THE SITUATION, 
EXPLAINS PIERIS. 
 
9.  (SBU)  ACHALA WENGAPPULI, STATE COUNSEL OF THE ATTORNEY 
GENERAL'S OFFICE OF COLOMBO, TOLD POLOFF THAT HE AGREED WITH 
THE RULING THAT THERE WAS INSUFFICIENT EVIDENCE FOR 
CONVICTIONS.  WENGAPPULI STATED THAT A RE-INVESTIGATION 
COULD BE LAUNCHED TO TRY TO LOCATE THOSE RESPONSIBLE FOR THE 
MASSACRE, BUT IT IS UNLIKELY THAT ANY NEW EVIDENCE WOULD 
SURFACE.  HE ALSO SAID THAT THE IGP, WHO HAS THE AUTHORITY 
TO TAKE PUNITIVE ACTION AGAINST POLICE OFFICIALS, WILL NOT 
EXERCISE HIS DISCIPLINARY POWER SINCE HE HAS NOT DONE SO IN 
REGARD TO THIS CASE TO DATE.  ANOTHER OPTION, WHICH 
WENGAPPULI THINKS WOULD LIKELY BE MORE FRUITFUL, IS FOR THE 
VICTIMS' FAMILIES TO BRING THE BINDUNUWEWA CASE BEFORE THE 
HUMAN RIGHTS COMMITTEE IN GENEVA.  (THE OPTIONAL PROTOCOL 
ALLOWS THE HUMAN RIGHTS COMMITTEE TO CONSIDER VIOLATIONS OF 
HUMAN RIGHTS EXPERIENCED BY INDIVIDUALS THAT ARE NOT 
REDRESSED BY HIS OR HER DOMESTIC GOVERNMENT.) 
 
10.  (SBU)  IN A JUNE 3 MEETING, RADHIKA COOMARASWAMY, 
CHAIRPERSON OF THE HUMAN RIGHTS COMMISSION IN SRI LANKA, 
TOLD A POLITICAL INTERN THAT SHE BELIEVES THE POLICE 
OFFICERS ARE GUILTY OF UNLAWFUL ASSEMBLY IN THEIR FAILURE TO 
STOP THE ATTACK.  HOWEVER, SHE LAMENTED THE DIFFICULTY OF 
SUCCESSFULLY PROSECUTING CASES AGAINST POLICE OFFICERS. 
LIKE WENGAPPULI, SHE THINKS THE BEST OPTION IS FOR THE 
VICTIMS' FAMILIES TO BRING THE CASE TO THE HUMAN RIGHTS 
COMMITTEE TO SEEK COMPENSATION. 
 
11.  (SBU)  M. REMADIOUS, ATTORNEY-AT-LAW AT THE CENTER FOR 
HUMAN RIGHTS AND DEVELOPMENT, TOLD US THAT HE FEELS THE 
POLICE SHOULD BE HELD ACCOUNTABLE FOR THE MASSACRE AND 
SHOULD BE INDICTED.  HE CLAIMS THERE WAS SUFFICIENT EVIDENCE 
SINCE A POLICE PHOTOGRAPHER TOOK PHOTOS OF THE AFTERMATH OF 
THE ATTACK.  HOWEVER, NOT ALL OF THE PHOTOS WERE SUBMITTED 
AND ONLY CUT-UP COPIES OF NEGATIVES WERE SUBMITTED FOR 
EVIDENCE, HE ACKNOWLEDGED.  REMADIOUS ASSERTS THAT IT IS NOT 
POSSIBLE TO BRING THIS CASE BEFORE THE HUMAN RIGHTS 
COMMITTEE BECAUSE IT IS AN "INTERIOR CRIMINAL CASE," AND 
THUS THERE IS NO BASIS TO TAKE THE CASE OUT OF THE COUNTRY. 
ALSO, HE NOTES THAT FIVE OF THE INMATES' BODIES WERE NOT 
IDENTIFIED SO IT WOULD NOT BE POSSIBLE TO COMPENSATE THESE 
VICTIMS' RELATIVES. 
 
12.  (SBU)  RORY MUNGOVEN, HEAD OF THE FIELD PRESENCE OF THE 
UNITED NATIONS HUMAN RIGHTS COMMISSION IN SRI LANKA, TOLD A 
POLITICAL INTERN THAT THE BINDUNUWEWA CASE COULD BE BROUGHT 
BEFORE THE HUMAN RIGHTS COMMITTEE. THE VICTIMS' FAMILIES 
WOULD HAVE TO SHOW THAT ALL NATIONAL REMEDIES HAVE BEEN 
EXHAUSTED AND THAT THE GSL HAS FAILED UNDER THE UNITED 
NATIONS HUMAN RIGHTS COVENANT TO REDRESS THE GRIEVANCES OF 
THE VICTIMS, MUNGOVEN EXPLAINED.  HE PREDICTED THAT THE 
HUMAN RIGHTS COMMITTEE WOULD FIND IN FAVOR OF THE INMATES. 
IN THE PAST, THE GSL HAS FOLLOWED THE COMMITTEE'S 
SUGGESTIONS, SO MUNGOVEN BELIEVES THAT THE GSL WOULD 
COOPERATE AGAIN AND ISSUE COMPENSATION TO THE FAMILIES OF 
THOSE MASSACRED. 
 
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NORTH EAST SECRETARIAT ON HUMAN RIGHTS ISSUES APPEAL TO UN 
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13.  (U)  THE LTTE-AFFILIATED NORTH EAST SECRETARIAT ON 
HUMAN RIGHTS (NESOHR) ISSUED AN URGENT APPEAL TO THE UNITED 
NATIONS HIGH COMMISSION ON HUMAN RIGHTS ABOUT THE 
BINDUNUWEWA CASE ON JUNE 8.  A STATEMENT BY THE NESOHR PUTS 
FORTH ITS CLAIM THAT A PATTERN HAS DEVELOPED IN RECENT YEARS 
IN WHICH THE JUDICIAL SYSTEM HAS RULED IN FAVOR OF SINHALESE 
DEFENDANTS ACCUSED OF COMMITTING VIOLENT ACTS AGAINST 
TAMILS.  THE FEW INVESTIGATIONS OF HUMAN RIGHTS VIOLATIONS 
HAVE YIELDED EVEN FEWER CONVICTIONS OF POLICE OFFICERS, THE 
NESOHR CONTENDS IN THE PRESS RELEASE. 
 
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COMMENT 
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14.  (SBU)  IT IS HARD TO BELIEVE THAT SUCH A HORRIFIC 
INCIDENT, WITH SO MANY PARTICIPANTS AND SO MANY SURVIVING 
VICTIMS, HAS PRODUCED NO RELIABLE EYEWITNESS TESTIMONY OR 
EVIDENCE TO CONVICT THE PERPETRATORS.  EVEN IF THE POLICE 
DID NOT PARTICIPATE IN THE ATTACK, THE POLICE OFFICERS IN 
CHARGE WOULD SEEM TO BEAR SOME RESPONSIBILITY FOR FAILING TO 
HALT THIS ATTACK.  THE FAILURE BY THE GSL TO PROSECUTE THESE 
GRISLY MURDERS WITH THEIR OBVIOUS ETHNIC OVERTONES WILL DO 
LITTLE TO PROMOTE TAMIL COMMUNITY CONFIDENCE IN GSL 
IMPARTIALITY. 
LUNSTEAD