The Trinco-5 and a legacy of impunity

July 11, 2013 From sprucing up the capital city to shelving antidevolution plans, holding a muchdelayed election and making gingerly steps towards addressing allegations of war time excesses, the Rajapaksa Administration is getting its house in order ahead of a major Commonwealth summit in November. But amidst the changes prompted by increased international attention focused on Sri Lanka as CHOGM 2013 approaches, the regime still seeks total control in the north and wants to rubber stamp its anti-devolution credentials in the south. And as the judicial process into the brutal murder of five Tamil students in Trincomalee unfolds, it opens up a barrage of questions about alleged abuses and excesses in the war that broke out seven months after the killings It was only the second day in a brand new year. And 2006 was new in more ways than one. Sri Lanka had a new President who had assumed office barely 44 days ago after defeating his opponent by a slim margin, largely due to a LTTE enforced boycott of voting in the north and east of the island. The Ceasefire Agreement signed in 2002 between the Government of Sri Lanka headed by then Prime Minister Ranil Wickremesinghe and the LTTE was under strain but still technically in place. Despite his hawkish credentials, the newly-elected President did not abrogate the CFA soon after his ascension to the highest office of the land. Scandinavian peace monitors who

had arrived in the country to monitor the shaky truce in 2002 were still around. One month and a few days into the Mahinda Rajapaksa presidency, the ground was about to shift, just months before a series of unfortunate events broke the tenuous peace and propelled the country back into full-blown civil war. Trincomalee had been a potential flashpoint given the town’s ethnic composition and the ongoing tussle over a Buddha statue in the centre of the Port City. Despite a Court order dictating its removal, the statue remained and was given security by armed forces personnel stationed in the city for good measure. The tension had created sporadic violence and a growing suspicion among residents of the increased military presence in the town. It was sundown on 2 January 2006 when a group of seven 21-year-olds, six of them schoolmates, gathered on Dutch Bay beach. The informal gathering that was to bid farewell to a friend who would return to the Moratuwa University after vacation went tragically awry. Many in town heard the boys’ cries as one by one shots rang out into the night. The area had been cordoned off by security forces who claimed soldiers had been attacked by the LTTE. The lights in that area alone had been turned off. It took four minutes – between 7:51 and 7:55 p.m. – for the five executions to take place. The father of one of the boys was outside the security cordon and heard the screaming. Half an hour later, five bodies and two grievously injured young men reached the Trincomalee Hospital. (Terrible truth of the Trincomalee tragedy, D.B.S. Jeyaraj) Spin doctoring The lights now back on, the military circulated its version of events. They blamed the deaths on accidental grenade blasts during a LTTE attempt to attack Special Task Force Personnel. But soon enough Judicial medical reports refuted the military spin. All five victims had suffered fatal gunshot wounds. Strangely the ballistics report filed later showed that the guns used in the murders did not match STF issue weapons. Desperate to hold on their version of events, Police personnel attempted to obtain signatures from parents of the five youth, certifying that they were in fact LTTE cadres. When the attempts at intimidation failed, the Police finally released the bodies to the families. During a collective funeral at their alma mater, eulogists went out of their way to reinforce the victims’ innocence and refute the military claim that they were LTTE members. The involvement of the security forces personnel in the killings became manifest very quickly. Just three months after the murders, the University Teachers for Human Rights in Jaffna released a damning report citing witnesses and pointed to the culpability of a senior Police officer in the area and STF personnel in the murder of the

‘Trinco-5’. A WikiLeaks cable recently revealed that senior Rajapaksa regime officials had been well aware of the killers of the Trinco-5 since the incident took place, although it has taken the Government seven years and seven months and two UN Human Rights Council resolutions to finally move on the prosecutions. Basil says he knows In October 2006, then Senior Presidential Advisor and younger brother of President Rajapaksa told former US Ambassador Robert O. Blake that the Government knew STF personnel had been behind the killings. “We know the STF did it, but the bullet and gun evidence shows that they did not. They must have separate guns when they want to kill someone. We need forensic experts. We know who did it, but we can’t proceed in prosecuting them,” Ambassador Blake filed in a report to Washington as revealed in a WikiLeaks Cable. Ambassador Blake also wrote that the senior regime official had said that the Sri Lanka Army had been sufficiently trained in human rights, but that the Sri Lanka Navy had been credibly implicated in harassment and human rights violations. “We have few complaints in areas of SLA presence, but we have a problem with the SLN,” Rajapaksa explained. “We didn’t expect them to work with civilians and they weren’t trained.” Once their innocence was verified, the murder of the five young boys in Trincomalee became an early symbol of the legacy of impunity that would plague the Sri Lankan Government, both in its execution of the final war to defeat the LTTE and the continued suppression of legitimate dissent both during and after the war. It was an incident specifically made mention of in UN High Commissioner for Human Rights Navi Pillay’s Report on Sri Lanka to the UNHRC in March this year. During his speech to the Council in March, in response, Presidential Special Envoy on Human Rights Minister Mahinda Samarasinghe announced that non-summary proceedings into the murder of the five youths in Trincomalee would begin shortly. Building a case Accordingly, the Trincomalee Magistrate is now conducting the non-summary inquiry in which evidence is led by the Police. At the conclusion of this inquiry, if the Magistrate believes there is sufficient evidence to indict the accused, the case will be committed to the High Court by the Magistrate and the record sent to the AG for advice. From this point onwards, the ball will effectively be in the AG’s Court, the department now functioning directly under the President. The AG will review the evidence led at the non-summary inquiry and will consider whether there is sufficient material to form a prima facie case against the accused. If AG believes so, the department will send an

indictment to the High Court against the accused. If the AG believes evidence is not sufficient to for a prima facie case, he will then quash the committal of the Magistrate and release the accused. It is as a part of this process that out of the blues, seven plus years after the murders, 12 Special Task Force personnel have been arrested and remanded. Among them is an Assistant Superintendent of Police. The senior Police official witnesses and informants have indicated commandeered the operation remains a free man, now promoted in the ranks of the Police force and recently returned to ground zero as it were, in Trincomalee. Notwithstanding, the investigation into the brutal murder of the Trinco-5 remains the singular concession the ruling regime has made to growing calls for accountability on the part of the State for alleged rights abuses committed during war-time. Major progress in one week None of this is accidental. In a single week, a Government that has displayed incredible reticence towards allowing the north to be (provincially) governed by elected representatives of the Tamil people and has remained insistent on the innocence of armed forces personnel during the conduct of the war appears to have made significant concessions on both fronts. A northern provincial poll – the first in 25 years – will be held in September (provided there are no legal challenges mounted to the holding of that election), while the swift arrests of STF personnel in connection with the five murders in Trincomalee indicates that there has been a monumental rethinking of priorities in the upper echelons of power in Colombo. There is little doubt, political observers say, that the rush to ‘fix’ the more glaring problems as far as the international community is concerned is motivated by the Government’s determination to pull off the Commonwealth Heads of Government meet in Colombo this November. It is less concerned with the need to show progress or be threatened with tougher international action at the next session of the UNHRC in Geneva. But under increasing pressure from certain members of the Commonwealth of Nations, the Commonwealth Secretariat is transferring the pressure on to the regime and pushing it towards progress ahead of the major summit. Last week Commonwealth Deputy Secretary General Mmasekgoa Masire-Mwamba visited Colombo to review arrangements for the November summit. On the sidelines of that visit was a Commonwealth Secretariat-organised capacity development workshop for the Human Rights Commission of Sri Lanka on conducting

national inquiries in compliance with international standards. In the run up to CHOGM 2013, the Commonwealth Secretariat has committed itself to providing technical assistance to the local Human Rights Commission to strengthen the body’s capacity to “investigate human rights abuses, which would contribute to further enhancing the independence, authority and effectiveness of the Commission…” the Secretariat said on its website. Catch-22 In preparation for CHOGM, the investigation into the Trinco-5 murders could well become the showpiece. The troubling thing for the Government is that when it arrests and prosecutes members of the security forces for one such incident, it cannot keep issuing blanket denials about other alleged atrocities – some of them equally brutal and serious – it is being called to account for internationally. Commonwealth Secretary General Kamalesh Sharma, who has advocated international engagement with Sri Lanka as opposed to isolation on outstanding postwar challenges facing the country, realises that he has his work cut out for him. Sri Lanka and the Rajapaksa regime are under increasing international scrutiny over its human rights record and refusal to reconcile with or offer a political solution to the country’s Tamil minority community after the end of the war. To make a case for Sri Lanka to assume the position of the organisation’s chair for the next two years after CHOGM, the Secretariat has to ensure the Government in Colombo shows some progress before the summit takes place. As far as the Commonwealth is concerned, it is a moral issue and if it cannot get Sri Lanka to move on some of the more crucial issues, it faces its own crisis of legitimacy for affording the organisation’s chair to a member state whose democratic credentials are far from ideal. The scramble to fix things three months before the summit is therefore prompted not only by the Rajapaksa Government’s desire to play host to 54 world leaders and showcase the post-war miracle that is Sri Lanka this November, but also by the intense pressure being brought to bear upon the Commonwealth Secretariat to make Colombo earn the opportunity to play CHOGM host before it is bestowed so much international glory. In fact UK Foreign Office Minister Alistair Burt tweeted on Tuesday that Britain had informed Sri Lanka officially that it was expecting progress on reconciliation and media freedom issues ahead of CHOGM in November. At a meeting with Chris Nonis, Minister Burt had raised this and other issues including the case of the British tourist killed in Tangalle in 2011 during a meeting with Sri Lanka’s High Commissioner to UK, Dr. Chris Nonis.

Media front and centre Media

freedom issues will be front and centre of the run up to CHOGM 2013 even as the accreditation and registration process for the summit begins this month, bringing with it a host of complications for summit organisers. The controversial ‘No Fire Zone’ and ‘Sri Lanka’s Killing Fields’ Director Callum Macrae is seeking accreditation to cover CHOGM and his attempt to enter Sri Lanka is raising red flags for the Government. The final word on who enters the country for the summit rests with the Sri Lankan Ministry of Defence, summit organisers say. This means that media accreditation and registration will also be scrutinised by the Ministry. Sri Lanka’s press freedom record being what it is, with journalists killed, maimed and disappeared over the last eight years, organisers are correctly worried for the fate of foreign journalists who will cover CHOGM in November. It will also battle with the issue of needing to save face with the international press if Sri Lanka decides to reject visas for elements of the foreign media whose motives it deems are suspect. Hectic negotiations are now underway to ensure unimpeded access for media personnel seeking to cover the summit. Some sections of the Government, organisers claim, believe the prudent move would be to allow the press into the country, even

Frances Harrison and Callum Macrae, and engage with them. Barring their entry, these officials fear, would give further impetus to the notion that Sri Lanka suppresses the media and has something to hide. Other more powerful factions of the regime are equally adamant that such journalists do not step foot on Lankan soil. The Commonwealth is therefore engaged in a delicate balancing act, between the need to uphold its own values of media freedom and democracy and the intransigence of the Rajapaksa regime in Colombo. Enter Menon Intransigence in fact is a feature of the ruling Government that its counterpart in New Delhi appears to be compelled to deal with even as it hurriedly moves to put the brakes on President Rajapaksa’s plans to dilute the provisions of the 13th Amendment ahead of the election in the north. A visit to Colombo by India’s National Security Advisor Shivshankar Menon this week proved that both parties to the 1987 Indo-Lanka Accord were digging in for the long haul for the 13A battle. Menon, who is believed to have carried a tough message to President Rajapaksa from Indian Premier Manmohan Singh on his attempt to tinker with 13A and thereby alter the conditions of the 1987 bilateral agreement, found the Government was equally adamant on the need to repeal Police and land powers and seek “broader consensus” on other provisions of the 13th Amendment through a Parliamentary Select Committee. In what appeared to be a strange coincidence, the PSC set up to go into constitutional reform pertinent to the national question met in Parliament on Tuesday, shortly after Menon had completed his rounds of political discussions in Colombo. The PSC that currently only comprises Government members will not be the rushed process, Cabinet Spokesman Keheliya Rambukwella promised three weeks ago, but will likely take its time over matters. Faced with intense and relentless pressure from New Delhi and a severe lack of consensus within its own coalition, President Rajapaksa has decided to shelve plans to tinker with the 13th ahead of the northern poll – and more importantly CHOGM. Sri Lanka remains alive to the fact that the summit is going ahead in Colombo – barring any last minute manoeuvres – only because New Delhi intervened to prevent a high level Commonwealth grouping in April from placing Sri Lanka on the official agenda with regard to a deterioration of democratic values in the country. Hectic lobbying by New Delhi ensured that the summit venue did not change and Colombo remains concerned that if angered, the Indian Government could exert similar influence to downgrade participation and embarrass Colombo. This would be a last

resort, diplomatic sources say, and would require the Rajapaksa regime to forge ahead with changes to the 13th and a postponement of the northern election – both now remote possibilities. The dissonance between what India wants and the Government in Colombo is attempting became clear not only during Menon’s visit to Colombo but also following Economic Development Minister Basil Rajapaksa’s two-day tour of New Delhi last week. Minister Rajapaksa, who acted as the President’s special envoy, travelled to New Delhi to brief senior Indian officials there about the Government’s plans about the 13th Amendment. During his visit, the Minister met also with Indian Foreign Minister Salman Khurshid. Following the visit, the two countries did not issue a joint communiqué. The Press Trust of India reported that Minister Khurshid had emphasised to the visiting Sri Lankan Minister the need to fully implement the constitutional provision dealing with devolution of powers to provinces without dilution and to go beyond it to ensure meaningful development. The Ministry of External Affairs in its own version of the visit said the Indian Minister had stressed the importance of all political parties in Sri Lanka being represented in the Parliamentary Select Committee dealing with issues relating to constitutional reform and expressed hope that all parties would join the process. Two days later, the New India Express reported that Minister Khurshid had strongly denied giving an indication that he had asked all parties to join the PSC. Dissonance “Speaking to Express, official sources said the Lankan side sought Khurshid’s assistance in getting the Tamil National Alliance (TNA) ‘engaged’ in the PSC process. In reply, Khurshid said he would speak to the TNA to ‘ascertain their thinking’. Khurshid also added that India would continue to ‘facilitate dialogue’ between the Lankan Government and the TNA as part of the political process,” the media report of Khurshid’s denial said. Menon’s visit too proved that India was adopting a unique approach to the problem of the 13th Amendment, when the senior Indian official told the Sri Lanka Muslim Congress during a meeting at the Taj Samudra in Colombo that New Delhi would not “allow” Colombo to alter the Indo-Lanka Accord unilaterally. Diplomatically speaking, it is a suave move; India cannot propose to intervene in the question of a domestic constitutional reform proposal such as altering the provisions of the 13th Amendment. What it can do is use its full strength to ensure the provisions of the Indo-Lanka Accord – a bilateral agreement between the two sovereign states – are not tampered with without consultation. This is why Indian officials keep referring to Sri

Lanka attempting to alter the Accord, instead of opposing outright the attempt to reform the 13th Amendment. The Indo-Lanka Accord lays the framework for 13A and the question now is whether one can be altered without fundamentally altering the terms of the other. What remains clear however that as adamant as New Delhi is to prevent the Rajapaksa regime from reneging on its commitments on devolution to the Tamil people, the Rajapaksa administration is equally resolute in its vision to dilute the powers accrued to the provinces, especially as it is faced with the prospect soon of a council controlled by the Tamil National Alliance. The regime’s anti-devolution agenda therefore is likely to see a resurgence once the Commonwealth Summit and the northern election and possibly even the next session of the UNHRC is done and dusted. The Presidency of Mahinda Rajapaksa according to some analysts is likely to be defined by a few fundamental things. These include his defeat of LTTE terrorism, an apparent culture of impunity his regime is perceived to be fuelling and the alleged denial of political concessions to end an ethnic struggle he and his administration do not believe exists. And they are legacies the Rajapaksa regime may be determined to protect and perpetuate, regardless of the consequences.

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