It is alleged that on the 4th of August 2006, 17 ACF employees were killed in Muttur. These employees were in Sri Lanka and their main mandate was to provide for humanitarian assistance to all victims of the Tsunami. Innumerable requests were made for proper investigation. The first investigation was initiated on the 15th of August 1946 at the Magistrate Court. According to representatives of the ACF who were at Sri Lanka, after having monitored the investigation for 18 months, they concluded that all the fundamental principles of justice were baffled. Essentially, it was apparent that the systematic political interference undoubtedly compromised the investigation. The very fact that the case has been transferred to different national jurisdictions without any official explanation being given is a testimony of the lack of judicial independence. Moreover, the innumerable procedural irregularities obviously forestall any likelihood of justice ever being rendered to all the victims. During the ongoing investigations, ACF also filed a complaint at the National Human Rights Commission in Sri Lanka in September 2006. However, ACF deprecated the fact that the National Human Rights Commission did not play a proactive role
In November 2006, a Presidential Commission was established by the current President Mahinda Rajapaksa to inquire into the ACF case. The aforementioned Commission was being monitored by a special Group of International Experts. ACF believed that the International Group of Experts would ensure that the Commission fulfilled its mandate without being subject to political interference. Unfortunately, the International Group of Experts ultimately left Sri Lanka prematurely as according to them basic and fundamental principles of international law were not being abided by. It was argued that the Commission was contrary to claims, not independent. Additionally, the absence of appropriate witness protection programme further compromises the investigations.
Sri Lanka has purportedly claimed carried out 3 investigations insofar as the ACF case is concerned. After having observed the situation, ACF terminated its mission in Sri Lanka as the investigations were manifestly incompatible with the precepts of international law and violated the notion of justice.
The killings appear to all intents and purposes well orchestrated. These employees were in effect executed by a ‘gunshot to the head’. These employees were at the moment of the commission of the crime, on the premises of the organisation i.e. the ACF base in Muttur. It is not disputed that the fact that they were civilians and more specifically humanitarian workers, they should be entitled to the protection under International Humanitarian law and therefore the Geneva Conventions as well as customary international law should be prima facie applicable. After having briefly halted its operations in Sri Lanka after the Muttur massacre, ACF resumed its operations. ACF continued presence in Sri Lanka allowed it to closely oversee the investigations and to ascertain that their current exployees are not exposed to any danger. It is important to highlight that for almost a year and a half, the ACF fully co orperated with the 3 different authorities mandated to investigate the Muttur Massacre and these are the procedure initiated at the Magistrate Court in August 2006, the complaint lodged by ACF at the Human Rights Commission and the Presidential Commission of Enquiry. Nonetheless ACF ultimately concluded that all these institutions have failed to deliver justice as they had systematically faced legal and unwarranted political hurdles.
It was only on the August the 6th that ACF had access to the premises of the organisation. Having collected the bodies, ACF informed the officers at the Police Station in Muttur that they intend to collect the bodies. They were not allowed to go to the compound on their own and instead 5 policemen accompanied them. ACF was not allowed to take pictures or make any phone calls. Although the police officers were present, they made no effort to gather any evidence or assist in collecting the evidence. The police only filmed the scene. According to ACF, many items were stolen from the base. The bodies were subsequently transported to the Trincomalee hospital. On the 8th of August, an autopsy was performed but as a result of lack of resources, no ballistic evidence was gathered. Yet the autopsy was able to conclude the cause of the death and thus families were given death certificates.
ACF admitted despite the difficulty in determining the identities of the authors of these heinous acts, the manner in which the investigations were conducted illustrate a tendency to conceal essential elements which could throw light on the perpetrators.
The Magistrate court in Sri Lanka has primary national jurisdiction. Their main task boils down to carry out a preliminary investigation into complaints lodged, by giving orders to the Police Department. The underlying rationale of the above duty is to ascertain that all investigations are monitored and are conducted in accordance to a judicial procedure. Additionally, the magistrate must issue a verdict on the cause of death. The first magistrate assigned to this case issued an order to the effect that the police must, ‘conduct a serious and effective investigation of this matter’ and should ‘take steps to produce relevant witnesses and evidence in this regard as these are very serious and suspicions deaths under the Act of the Geneva Conventions’. The department of the Attorney General and the Criminal Investigation Department were required to co-operated. Hearings were held and thus allowed the magistrate to oversee the investigation, instructing the police officers thoroughly in matters such as exhumation and the procedure applicable. In March 2007, the Magistrate gave his verdict on the cause of death. The Magistrate also decided that it would carry on monitoring the investigation being conducted.
An attorney was representing ACF during the proceedings. The Muttur Massacre case however suffered from innumerable procedural irregularities. Firstly, the case has been heard by 3 magistrates and was transferred 5 to different national jurisdictions for 5 times and consequently triggers suspicion about the supposedly independence of the judiciary. Indeed the first transfer was justified on the ground that the Minister of Justice has informed the Magistrate over the phone to transfer the case. Although, ACF’s legal counsels raised objections on the arbitrariness of the decision as it is in contra well established principles of justice, the transfer was nevertheless upheld. The intervention of the Ministry of Justice attested to the endemic political interference into judicial proceedings. It must be highlighted that a Tamil Magistrate was in charge of the case in Muttur whereas by transferring the case to Anuradhapura, a Sinhalese was appointed.
Pertinently, once the case was transferred from Muttur, the proceedings were no longer being conducted in Tamil but Sinhala. It is alleged that the remote geographical area was also a factor that was taken into account as it appears to a subtle attempt to discourage key witnesses and families from attending and/or participating to the proceedings. Therefore, conspicuously the very notion of territorial principle was not respected and no official explanation was given. On the 5th of September 2007, the Magistrate in Anuradhapura unexpectedly stated that the preliminary investigation has seemingly come to an end and thus the case shall be referred to the Judicial Service Commission. According to ACF, the above cannot be rationally justified as it was still virtually impossible to detect the perpetrators of the crime.
Intriguingly, the attorney general closely monitored two particular aspects of the case i.e. the exhumation of the victims bodies as well as the setting up of a witness protection programme. The Attorney General issued special instruction insofar as the exhumation is considered which created unwarranted confusion. Moreover, the promised witness protection programme was never implemented. Interestingly, at the hearing held on 5th of September 2007, the Magistrate had recourse to an exceptional procedure which entailed referring the case to the Attorney General himself. Usually, this procedure is confined to actions taken against suspects. However the fact that there was no official suspects yet, the powers of the AG were limited to the issuing of instructions to the police in relation to the gathering of evidence. ACF, believes that neither did the Attorney General advise the CID competently nor did his involvement help the smooth progress of the case.
Information relating to the investigation of the case was not easily accessible. While ACF does not claim to be fully conversant with the procedure applicable to the case, it cannot be disputed that from the very beginning, the investigation process was systematically hampered. The local police did not coorperate and neither was the CID more diligent when it handled the case. Thus, the collection and preservation of evidence was flagrantly compromised. Access was denied to the premises of the organisation to the SLMM. The exact time of the death still remains a mystery and conflicting reports have emerged. Had the time of death been known, it would have been relatively easier to narrow down a list of potential suspects. Furthermore, it is only 3 days after the cold blooded execution that official criminal investigations began and the crime scene was not protected. It could be deduced that the officials did not wish to proceed with forensic examination.
On the 4th of September 2006, ACF lodged a complaint at the National Human Rights Commission. In spite of the well known inefficiency of the Commission, ACF nonetheless referred the matter to it in a bid to bring to light the circumstances in which its employees were killed. According to its constituent statute, the Commission has a wide mandate and it includes the investigation of alleged human rights violations. However, ACF was appalled by its lack of commitment to the case. The Commission has suffered much deserved opprobrium from the international community.
A Commission of Inquiry established in November 2006 by Sri Lankan President Mahinda Rajapaksa to investigate this and other “serious violations of human rights” wound up nearly three years later without completing its mandate; it failed to identify the perpetrators in the ACF killings even when presented with substantial, compelling evidence of their identity. According to its Chair, the Commission “ran out of funds” and was hampered by the lack of witness protection. More than anything, the Sri Lankan government, which actively suppresses criticism and opposition, would not allow the Commission to carry out its mandates independently. The Commission’s report to President Rajapaksa was never made public, but leaks to the press after its mandate expired in 2009 exonerated state forces and blamed the LTTE.
The Presidential Commission consisted of 8 Sri Lankans. Their tasks were being monitored by the International Group of Eminent Persons. The mandate of the IGEP was restricted to observe the investigations being carried out by the Presidential Commission and to ensure that it is in compliance with norms and standards of international law. After 1 year, the IGEP terminated its mission in Sri Lanka on the 31st of March 2008 and left Sri Lanka at the end of April as it was conspicuous that their advice was not being heeded to and the fundamental principles of international were not being adhered to. Additionally it was clear to the IGEP that there was a lack of political willingness to conduct a genuine investigation. Moreover, the fact that the Attorney General interfered in the workings of the Presidential Commission illustrates the quasi absence of independence of the institution. Indeed, as the Attorney General was mandated to guide the Presidential Commission insofar as the investigation is concerned. Thus, an inevitable conflict of interests arose as these executions could have been carried out and commanded by officials of the Sri Lankan government.
The Attorney General being an official of the government should not have been delegated the role of supervising the Commission as it necessarily casts doubts on the purported independence of the institution. Despite numerous criticisms by the IGEP condemning the above state of affairs, it was left unattended by the government of Sri Lanka. The first phase of the investigation which consisted was also held in camera and Counsels for ACF was denied access. Thus, there was to all intents and purposes no transparency. The second phase i.e. public audience began in March 2008. However, in light of the fact that the witness protection programme had never been implemented, the likelihood of witnesses being prepared to denounce the perpetrators was inexistent.
In light of the fact that, in November 2012, the United Nations Human Rights Council (HRC) would be undertaking a review of Sri Lanka’s human rights records, ACF and SPEAK made a joint submission, on the 23rd of April 2012, to denunciate impunity and obstruction of justice that prevails in Sri Lanka.
The report highlights obstruction of justice and political interference within the judiciary system and flagrant failures of the Sri Lankan authorities during the 2 years of investigations on the Muttur massacre. Consequently, ACF and SPEAK made a request to the HRC that this report is taken into account in order to: - open an international and independent investigation to shed light on the Muttur massacre;
- recognize officially the Sri Lankan violations of its international obligations.
On the 31st of August 2012, SPEAK and ACF attended a pre-session on the Universal Periodic Review in Geneva. As the human rights records of Sri Lanka will be under scrutiny during the next UPR and coupled with the fact that ACF/SPEAK made a joint submission, the pre-session was an opportunity to make an official statement and call upon all member states to take a firm stance against Sri Lanka and to support our request for accountability in Sri Lanka. SPEAK/ACF lobbied intensively and many states have expressed their support on the issue and stated that they will formally question Sri Lanka on the issue during review in November. Our lobbying efforts will be ongoing and shall intensify gradually. While the present focus is on the review, ACF and SPEAK have also agreed about the way forward after the UPR review.
The Universal Periodic Review (UPR) of Sri Lanka, during which HRC member States are reviewing its human rights practices, took place in Geneva on the 1st November 2012 and the report including the final conclusions was adopted on Monday the 5th November.
Despite specific States recommendations, the Government of Sri Lanka (GoSL) once again refused to render the perpetrators of the killing of 17 ACF aid workers accountable for their crime.
The UPR was the opportunity for member States to ask questions about the progress made in Sri Lanka since 2008 regarding the protection of human rights, and to make recommendations for improvement. ACF and SPEAK submitted a report to the Human Rights Council in April and was there to observe the session. Despite many remarks and recommendations about accountability made during the review, ACF and SPEAK are disappointed to see that once again the GoSL demonstrated a total lack of willingness to hold the perpetrators of the crime to account.
A clear example of the refusal of the GoSL to actually take concrete steps against impunity was the rejection of all recommendations made by France during the review. France had recommended that the GoSL “create a credible investigative mechanism into the murders consisting of independent professional investigators leading to the identification, arrest and prosecution of the perpetrators”, but this was simply rejected by Sri Lanka.
Beyond the immediate disappointment, it is yet another proof of the utter disregard of the GoSL for the fundamental rights of the victims. Without involvement of the international community, justice will never be served in Sri Lanka.
ACF/SPEAK believe that it falls on the international community to push the GoSL for accountability and to take concrete measures regarding impunity and are presently lobbying with many states.