THE MIRUSUVIL CASE: WHY SEARCHING

REFORM IS URGENT AND NECESSARY

Image courtesy Daily News

by Niran Anketell

on 07/02/2015

The High Court Trial at Bars 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 Lankas legal system to deal with human rights violations
a view echoed by many others including officers of the Attorney Generals
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 Lankas context. While Special Rapporteur Pablo de Grieffs
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 Zeids 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 Lankas 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 selfcongratulatory 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 Lankas dark
past.
Posted by Thavam