Image courtesy Daily News
The High Court Trial at Bar’s recent conviction and sentencing of Staff Sergeant Sunil Rathnayake to death for what has come to be known as the ‘Mirusuvil massacre’ was met with the entirely expected and bellicose outrage of extremist nationalist Sinhala Buddhist elements. But a more interesting and nuanced response emerged from within the state apparatus. A military spokesman claimed that the judgment demonstrates the capacity of Sri Lanka’s legal system to deal with human rights violations – a view echoed by many others including officers of the Attorney General’s Department who handled the prosecution.
The most recent statements emanating from the Ministry for Foreign Affairs suggests that the incumbent government is considering a ‘purely domestic model’ for accountability. If true, this will place the government on a collision course with human rights activists and victims within Sri Lanka – most of whom have grown increasingly skeptical of the prospects for Transitional Justice and accountability through a purely domestic model. With Parliament expected to convene in September, days before the commencement of the Human Rights Council sessions in Geneva, the stage is set for what will become a frantic few weeks in September where the government will presumably table at least some legislative drafts in Parliament.
While the United Nations was expected to engage the government through the period between March and September, it has failed thus far to compel the Sri Lankan government to engage its own experts, civil society or victims’ representatives in any meaningful way in devising the mechanisms that are likely to be unveiled in September. In particular, it has failed to outline the contours of a model or models that would meet international standards in Sri Lanka’s context. While Special Rapporteur Pablo de Grieff’s observations were welcome and balanced, they were very preliminary, and much water has passed under the bridge since then. The lack of a coherent UN strategy even after High Commissioner Zeid granted Sri Lanka a reprieve in March was evidenced by the recent comments of UN Resident Coordinator Subinay Nandy who appears to have pledged UN monetary support for an explicitly ‘domestic’ process, preempting possible recommendations by High Commissioner Zeid’s Office towards greater domestic-international hybridity.
In this piece, I offer a few observations on the Mirusuvil case to demonstrate why, to ensure credibility, any process of accountability in Sri Lanka would first require serious structural reforms to the legal architecture pertaining to prosecutions of human rights violations.
The first is that the case concerning the Mirusuvil massacre appears to be an outlier relative to the vast majority of mass murders committed by state actors within Sri Lanka, in that it is one of the few cases to have seen at least some of those responsible brought to justice. In the vast majority of cases, no suspects were ever brought before a court, or where they were, cases are either pending or the accused have been acquitted. The early 2000s, however, saw a number of similar prosecutions being instituted in respect of mass atrocity crimes by the then Chandrika Kumaratunga government. These include the Bindunuweva case and the Krishanthy Coomaraswamy case. But as Moira Lynch of the University of Minnesota points out in her case study of Sri Lanka, this Kumaratunga era increase in prosecutions was short lived, and many of the trials initiated during this period either resulted in acquittals or are still pending.
Second, what is striking about the case is that the Trial-at-Bar took twelve years to conclude proceedings. It is uncertain as how much longer an appeal process, if initiated, would take. A conservative guess would be around the range of a further three to five years. The indictments in respect of the Mirusuvil case came some two years following the commission of the crime, and the trial commenced in September 2003. What followed thereafter perfectly illustrates why leaving accountability to an unreformed Sri Lankan legal system is a particularly bad idea. The case meandered along with multiple changes to the composition of the bench hearing the case. That a Trial-at-Bar – a form of trial perceived to be speedier than a regular High Court trial – took over a decade to conclude is an unfortunate indication of the utter dysfunction of the system. This is why a specialized court to deal with atrocity crimes is essential. Without it, trials to deal with human rights abuses could themselves take decades with damaging effects on the quality of the trials, the confidence of victims, transparency, and the continuity of the process.
Third, the case unerringly followed a pattern that is common to many of the limited number of prosecutions of state functionaries for atrocity crimes. That is, investigations are initiated either because of domestic or international pressure, or both; a number of suspects are identified; but only a few lower ranking foot soldiers are even convicted while others are not charged, discharged during trial or acquitted. The Embilipitiya, Bindunuweva, Chemmani and now Mirusuvil cases exemplify this troubling pattern. In the Mirusuvil case, eight civilians, including two children were blindfolded and their throats slit with a knife. The bodies were dumped in a toilet pit. The sole convict Staff Sergeant Ratnayake was found guilty of seventeen charges, one of which was unlawful assembly with common intention to cause murder. And yet, despite clear evidence of a series of crimes committed by multiple persons acting in collusion, only one person stands convicted more than fifteen years after the crimes took place. These cases point to structural deficiencies in the investigation and preparation of human rights prosecutions, and have resulted in widespread mistrust of police investigations and Attorney General led prosecutions. The 1994 and 1998 Commissions of Inquiry into Disappearances have already made recommendations that the state should empower an independent prosecutor to handle prosecutions with respect to human rights abuses. Without an independent prosecutor equipped to investigate, prepare and prosecute cases of serious human rights violations, an in-country process would only perpetuate a culture of impunity and recurrent failed prosecutions.
Fourth, Sri Lanka’s substantive criminal law is woefully inadequate to address the gravity of mass killings and address the command and superior responsibility of those bearing most responsibility for crimes. Unless the substantive law is amended to retroactively criminalize international crimes such as war crimes and crimes against humanity – and with it, introduce command responsibility and joint criminal enterprise modes of liability – the likelihood of even independent prosecutors and investigators ignoring the decision makers who ordered, facilitated or colluded in the crimes will remain high.
Finally, some level of international participation, and not mere technical advice and assistance, is necessary to ensure a measure of independence, neutrality and competence. The investigation and prosecution of complex international crimes requires specialist expertise and complete impartiality. While Sri Lanka is entitled to prosecute these crimes through the exercise of its own territoriality jurisdiction, there is no reason as to why that jurisdiction cannot be exercised through the inclusion of competent international experts.
The Mirusuvil case therefore demonstrates the best of what the Sri Lankan criminal justice system is capable of. That much is clear from the self-congratulatory expressions by state functionaries involved in the case. Sadly, this best case outcome under the prevailing system falls woefully short of not merely international standards, but also intuitive requirements of common sense and justice. To truly break with the past, Sri Lanka needs more than a mere demonstration of political commitment to institute a raft of cases against those considered errant bad apples. That is what the Chandrika Bandaranaike government did in its two terms in office, and the results are plain to see. Instead, the system requires wholesale reforms to ensure competence, independence and adherence to international standards. The commitment of a future government to ending impunity will be measured not by how willing it is to sacrifice a few foot soldiers and political opponents at the altar of international pressure, but by how willing it will be to create the institutional and legal framework necessary to create the institutions and devise the laws necessary to deal with Sri Lanka’s dark past.