The Bindunuwewa Massacre -- Justice Undone

[Originally published in the Law and Society Trust’s "Sri Lanka: State of Human Rights 2004." Revised and updated March 2006]

by Alan Keenan

On Oct 25th 2000, a mob of unknown size stormed the Government’s rehabilitation camp at Bindunuwewa, 5km north of Bandarawela town. After a fury of violence lasting anywhere from thirty minutes to an hour, unrestrained and to a significant degree supported by the local police stationed to protect the camp and its inmates, 27 Tamil detainees were left dead, and another 14 injured, some of them very seriously. Three or four days of violence between Tamils and Sinhalese in the surrounding hill country followed the attack at Bindunuwewa.

In the wake of this violence, and the national and international outcry at the murders at the camp, the government announced a series of investigations. A Commission of Inquiry, comprising the sitting Appeals Court Justice P. H. K. Kulatilaka, was appointed by President Kumaratunga on 8 March 2001 and held public hearings between May and October of that year. The Commission’s report was completed in November 2001 and officially handed over to the President some time in early 2002, but it has still not officially been released to the public. Meanwhile, as the Commission was gathering its evidence, investigations by the Criminal Investigations Division (CID) of the police and criminal proceedings by the Attorney General’s Department got underway, culminating in the indictment on 25 March 2002 of 41 suspects, among whom were 10 members of the police. The trial of the 41 suspects began in July 2002 in the form of a trial-at-bar before a panel of three judges at the Colombo High Court. Testimony ended in January 2003, and all hearings had concluded by early May 2003. The verdict announced on July 1st 2003 convicted and sentenced to death five of the accused, including two police officers.

When the Colombo High Court announced the long-awaited verdicts on July 1st 2003, reactions were swift, and divided. Some human rights lawyers and activists were quick to announce their satisfaction that justice had been done. According to one Tamil lawyer who had followed the case closely, the judgment was “a victory for the rule of law,” given that it was one of the few human rights or massacre prosecutions in which there has been a conviction. Another long-time human rights activist was quoted as saying that, “On this massacre, the law took its normal course and the suspects after trial were convicted. But unfortunately this was not so in several other similar cases… All these should be expeditiously disposed of in a similar manner as the Bindunuwewa case. The rule of law should be applicable to everyone irrespective of whether they are politicians, members of the armed forces or police.” While some expressed disappointment that other, higher ranking officers hadn’t in fact been prosecuted, the judgment was nonetheless felt by many to be a rare victory against impunity for officially sanctioned violations of human rights.

Yet while some expressed general satisfaction with the outcome of the case, others were outraged. Scenes of the two convicted policemen, one of them wailing in shock and despair and both protesting their innocence, were shown on TV and were featured on the front of all the next day’s newspapers. Both officers – Inspector Senaka Karunasena and Sub-Inspector Tyronne Ratnayake – proclaimed loudly that senior officers had been at the scene of the crime when the massacre had taken place and had unfairly made them their scapegoats. The English and Sinhala language media gave much highly sympathetic coverage to the plight of the two officers and their suffering families. The effects of the verdict were especially strong in and around Bandarawela, located just three kilometres from Bindunuwewa. Prominent businessmen, lawyers, and other local leaders immediately formed a defense committee for the five convicted, promising to raise money for their legal appeal and to support their families. Public meetings were held, moneys were raised, and outrage at the perceived injustice was expressed widely. Frequent mention was made of the fact that the two senior officers – Headquarters Inspector Jayantha Seneviratne and Assistant Superintendent of Police A. W. Dayaratne – escaped any punishment while their junior officers had been made to take the fall. The fact that Sinhala officers were being sentenced to death while “Tiger terrorists” were being allowed free reign under the terms of the ceasefire agreement with the government was also a frequent source of complaint. From this perspective, the verdicts were seen as an affirmation of business as usual, rather than being any kind of blow against impunity.

With the judgment of a five panel bench of the Supreme Court on May 27th 2005 that acquitted all of those convicted, the legal slate has now been wiped cleaned. Much about the case remains clouded in uncertainty, however, and certainly from the perspective of the victims and their families justice remains undone.

In order better to understand the Supreme Court’s judgment, it is important to consider the totality of available sources of information about what happened in Bindunuwewa on October 24th and 25th of 2000. This is especially true since the trial record on which the Supreme Court Justices based their acquittals does not contain all the relevant, or most reliable, information. The analysis that follows will rely heavily on the as-yet unpublished report of the Presidential Commission of Inquiry.

Together with other material -- published and unpublished legal documents, newspaper articles, and personal interviews with many people with first hand knowledge of the camp and the legal process – the Commission report makes it possible to piece together the major elements of the case and offers a larger perspective on the events at Bindunuwewa than what the Supreme Court panel had available to it.

It is important to state, of course, that none of the available documents or statements can simply be taken at face value. This is true even of the testimony before the Commission of Inquiry, where witnesses had had a lot of time to arrange their stories, as well as being obvious targets for intimidation.


The Attack

After being away for four days, the Officer-in-Charge (OIC) of the Rehabilitation Centre, Captain Y. K. Abeyratne, returned to a tense camp on the evening of 24th October. Many of the forty-one inmates – all of them Tamil men and boys, ranging in age from twelve to their mid-thirties – began to complain of various small grievances. This culminated in a collective protest against being held beyond what they thought would be their dates of release from detention, which eventually became a demand for their immediate release. The shouting soon turned physical – a shot was fired by one of the police stationed to guard the camp, one inmate attacked and slightly wounded the second in command of the camp, Lieutenant P. Abeyratne (no relation). A hostage-like situation ensued, with Captain Abeyratne apparently prevented by the inmates from leaving the camp while the second in command, Lieutenant Abeyratne, escaped the camp and announced to neighboring villagers that “the Tigers” had attacked him and would be attacking the village. Lieutenant Abeyratne then traveled to the Bandarawela Police Station and alerted them to the events in the camp. Headquarters Inspector (HQI) Seneviratne, along with Inspector Karunasena and about a dozen other police quickly headed to the camp. A disarmed HQI Seneviratne was allowed into the camp, where he negotiated with the inmates and reached a temporary calm, agreeing to remove the police post that was within the camp premises. Captain Abeyratne assured HQI Seneviratne that everything would remain under control as long as the police protected the camp from the crowds of Sinhala villagers who had begun to gather around the camp since the altercation began. The situation eventually calmed down later in the evening, as the crowds around the camp were dispersed by a small army contingent sent from the nearby Diyatalawa army camp. The army returned to barracks sometime after midnight, leaving a small band of police standing guard overnight.

By 6:45 the next morning, well-armed police reinforcements began to arrive and were stationed at various points around the camp. At about the same time, crowds once again began to gather. A bus was stopped and its passengers were asked to join the protest against the camp. Others arrived on foot and in cars and lorries – perhaps spurred in part by posters that had sprung up overnight featuring racist slogans calling for the violent removal of the camp and its inmates. Eventually a sizable crowd had gathered – estimates range from 500 to 3,000 – many of whom were armed with sticks and knives and poles (but none with any firearms). At some point around 8:30 am, the camp was stormed by some portion of the crowd. The inmates were attacked and killed in multiple and gruesome ways – hacked and clubbed to death, their bodies dismembered and burned, some even burned alive. The police not only failed to prevent the attack, but some even partook in the massacre, shooting at least three of the inmates – and killing one of them – as they fled their pursuers. A number of those detainees who reached the apparent safety of a police truck were subsequently attacked, and one of them killed, while the police looked on. None of the attackers were arrested. No police and very few of the attackers were injured. Twenty seven of the detainees were killed. Fourteen were injured, some very seriously. By the time the riot squad arrived from the Bandarawela police station and the army arrived from the nearby Diyatalawa camp around 9:30, the violence was all over. The wounded were taken to a variety of different hospitals.

Almost as soon as the attack was over, a number of competing narratives and explanations began to vie for supremacy in the public sphere, feeding off the lack of clear information available from trustworthy sources. Among the most popular initial stories were two diametrically opposed accounts. The first held that the attack was actually the intended result of an LTTE conspiracy, instigated by a recent arrival at the camp, the immediately infamous “Anthony James”. Phone calls he made from the camp to contacts in Batticaloa on the evening of the 24th and morning of the 25th were interpreted by some as evidence of his dangerous LTTE connections and involvement in the attack. An opposing account held that there were in fact many more inmates killed, their bodies and identities hidden in a plot organized and carried out by the police and army, and perhaps government politicians. There has yet to be uncovered any serious evidence for either of these conspiracy theories. While Anthony James did apparently help lead the initial protests on the evening of the 24th, there is no available evidence that he was an LTTE plant – and no evidence more generally that the LTTE had any hand in organizing the detainees’ agitation, or that it was intended as a deliberate provocation. Similarly, there is no evidence that there were any more than 41 detainees in the camp at the time of the attack or that there were any additional victims not acknowledged by government authorities.

On the other hand, there are important indicators of some degree of organization behind the attack by the “villagers” – people were needed to write and post the hate-filled posters calling for the camp’s violent destruction, and someone made calls to bring people from neighboring villages and the town of Bandarawela to join the crowd. The fact that there had been a significant agitation by Sinhala nationalist parties during the campaign for the October 10, 2000 Parliamentary elections, some of it explicitly calling for the camp’s closure, offers further grounds for suspicion. The fact that the Commission showed no interest in pursuing these leads, and that whatever CID investigations into such connections there might have been were never made public and bore no fruit, has left this brand of conspiracy story hard to fully discount. We will return to these points later.

The Camp and the Detainees

Before the causes and consequences of the attack can fully be analyzed, it is important to understand the nature of the Bindunuwewa rehabilitation camp and the basis on which the 41 detainees were held in the camp.

The Bindunuwewa camp was one of three “rehabilitation centers” that operated under the auspices of the Commissioner General of Rehabilitation. However, like the other two rehabilitation centres, Bindunuwewa was actually administered by the National Youth Services Council, which in 2000 came under the auspices of the Ministry of Sports and Youth Affairs.

The job of determining both eligibility for rehabilitation and an inmate’s period of detention belonged to an Advisory Committee that was appointed by the President under the terms of the Emergency Regulations. The Committee worked closely with the Secretary to the Ministry of Defence. How exactly the Committee made its decisions depended on whether the inmate arrived at Bindunuwewa as a “detainee” held under the terms of section 9 of the Prevention of Terrorism Act (PTA) or Regulations 17-19 of the Emergency Regulations (ER) then in force, or as a “surrendee” who had handed himself over to the police or armed forces. None of the inmates had been convicted, or even charged, with any offence. In the case of those detained under the PTA or ER, the Secretary to the Ministry of Defence would consult with the four-member Advisory Committee to determine the suitability of a given person for rehabilitation and the period of rehabilitation. The resulting “rehabilitation order” was required to specify the length of rehabilitation/detention, but in the case of detainees there was no maximum period prescribed by the regulations establishing such a rehabilitation order. There was thus a sizeable amount of ambiguity about the length of “rehabilitation” for detainees.

In the case of “surrendees,” the terms of the Emergency Regulations are more precise. Surrendees are required to be handed over to the Commissioner General of Rehabilitation and assigned to a rehabilitation centre within ten days of their surrender. Within that same ten-day period, the officer to whom the surrendee has surrendered must inform the Secretary to the Ministry of Defence of the fact of surrender and of the handing over to the Commissioner General. At this point, the Advisory Committee is tasked with considering the specific case of the surrendee and determining both his or her eligibility for, and period of, rehabilitation. This process, which generally takes at least a number of months, would happen even while the surrendee was being held at one of the rehabilitation centers. If recommended for rehabilitation, a surrendee’s initial term of detention would range from three to twelve months, with a provision that allowed the Commissioner General to recommend additional rehabilitation in increments of three months, up to an aggregate period of 12 additional months. In sum, surrendees could be held for a maximum of two years. Thus even in the less ambiguous cases of surrendees, the process was complex and fluid enough for it to be difficult for a given inmate to be certain when she or he would be released.

The fact that the most serious complaints lodged with Captain Abeyratne on the evening of 24 October concerned the belief of many inmates that they were being held beyond their dates of release should thus have come as no surprise. While there is no evidence that these beliefs were accurate in the case of any particular inmate, the fact that there was no mechanism for making clear the final release dates for the inmates certainly contributed to their anxiety and restlessness. Indeed, there had been a history of complaints along these lines at Bindunuwewa and the other camps. According to testimony before the Commission given by the Deputy Commissioner General of Rehabilitation, Col. M. A. Vipulagune, sometime in the year preceding the attack the inmates at Bindunuwewa had given Col. Vipulagune and the camp administrators a petition requesting that married inmates be released as soon as possible and that the others be released after six months. Vipulagune testified that he had handed the petition over to the Ministry of Defence, which had replied that it was unable to adjust the periods of detention. The Commission report further states that during a visit to the women’s centre, “Meth Sevana,” the inmates there said that they were not aware of their release dates but would like very much to know when they would be able to return to their families.

Other factors further complicated matters. First, the category of “surrendee” includes those who give themselves over to the police or security forces “through fear of terrorist activities”. As the Commission points out, it is wrong to consider them as surrendees, “because they have neither committed nor are suspected or accused of committing any offence. They are persons seeking protection… [and therefore] should not be housed in a rehabilitation centre meant for ‘detainees’ or ‘surrendees’.” Indeed, the Commission report points out that one of the fourteen survivors of the Bindunuwewa attack fell into this category, having fled the LTTE after being arrested/abducted by them during a family visit to the Wanni. As someone who was attempting to escape the control of the LTTE, the Commission rightly argues, he should never have been held against his will.

Second, the Commission points to the more basic problem that the Rehabilitation Centres mixed “detainees” and “surrendees,” whose situations are obviously very different. While those who surrender have in one way or another rejected the LTTE, detainees often maintain strong loyalties to the LTTE. The meaning and nature of appropriate “rehabilitation” would obviously be very different for these two sets of inmates. With respect to a related possible source of difficulty, the Commission report goes into detail about the dangers posed by the fact that the LTTE might in the guise of a “surrendee” plant a spy or “hard-core” cadre in the camp in order to undermine its operations. This danger is increased by the fact that a surrendee can remain within the camp for months before the Advisory Committee actually reviews his record – and even such background checks are far from foolproof. What’s more, even within the category of “detainee,” there were young people with a wide range of different experiences: some had actually been members of the LTTE, but others had simply been picked up on “suspicion” of “terrorist activities” with little or no evidence to support the suspicion. Finally, the fact that children as young as ten were housed together with men in their mid-thirties is not only less than ideal from the standpoint of rehabilitation, but is also a clear violation of the International Convention of the Rights of the Child, to which Sri Lanka is a state signatory.

In short, the rehabilitation system was founded on a less than consistent or logical set of legal procedures. And the centres’ actual activities, in turn, were a far cry from the “internationally acclaimed” models of “rehabilitation” that the Foreign Ministry publicized as part of its campaign against LTTE use of child soldiers. “Rehabilitation” at Bindunuwewa consisted of a combination of vocational training, regular religious observance, basic education in arithmetic, Tamil, English, and Sinhala for the younger detainees, and regular community service – but no real psychological counselling. Captain Abeyratne was, however, like his counterpart at the Telipilai camp, often quite helpful at arranging jobs for the inmates once their detention was over. In practice, then, “rehabilitation” was at best a way of offering the inmates a transitional space away from the LTTE or whatever other factors had led them to be picked up by the police or army on suspicion, and perhaps improving their chance to survive apart from active involvement in the conflict.

Despite its limitations as a source for “rehabilitation,” however, the consensus opinion among those who had visited and observed the operations of the camp, was that it was fairly well run and the inmates treated relatively well. For example, the Commission’s report cites the testimony of Colin Glennie, at that time the country representative for UNICEF, who had visited the camp in November 1999. In Glennie’s words, “On the whole, the centre was providing good care and rehabilitation in spite of the lack of resources necessary…. The caring attitude of Capt. Abeyratne was particularly commendable.” The atmosphere in the camp was certainly not that of a prison. The security was light, the inmates had frequent overnight visits from their families and spouses, and the inmates could also come and go from the camp with permission from Captain Abeyratne. The inmates did the shopping in Bandarawela town for the food that they themselves cooked for their meals. While some former inmates have since corroborated stories of excessive and unfair corporal punishment inflicted by the senior camp staff, it is clear that the camp was not an especially hostile environment, particularly in relation to the state of Sri Lanka’s formal prison system. Nonetheless, power was not absent from the camp dynamics: the camp was clearly designed to turn rebellious Tamil youth into more docile subjects of state power, and the requirement that the inmates address the camp OIC with the words “Shanti” and palms folded before them is only the most obvious of what was a more systematic set of patronizing relationships. That some inmates, particularly the older and married inmates, might have found such dynamics humiliating would not be surprising.

From evidence presented at the Commission hearings, as well as post-attack reports from other sources, it nonetheless seems clear that the inmates maintained relatively cordial relations with the local community. The inmates performed regular community service, or shramadana, for their neighbors and took part in local religious festivals; two former detainees were living and working peacefully in the Bandarawela town at the time of the attack; local residents even took part in games and festivities within the camp, as well as making offerings (dana) to the inmates as part of their own religious observances. Other than reports of some initial hostility to the introduction of LTTE cadre to the camp in 1993, there seems to have been no serious complaints from their Sinhala neighbors prior to the October 2000 election campaign, when the local Sihala Urumaya affiliate began to agitate against the camp.

The Commission’s Findings

The Events of October 24th

That there were problems in the camp – both in its administration and in its very conception – prior to the attack is thus clear. But that it had functioned for seven years without serious trouble is also undisputed. How did a small incident within the camp spiral out of control and lead to such an outburst of terror and violence? To answer that question, the Commission’s report begins with the events of the evening of October 24th, when a portion of the inmates began lodging their complaints with Captain Abeyratne, who had just returned after four days away, during which time Lieutenant Abeyratne had been in charge. Eventually the inmates’ complaints turned to vandalism, as Captain Abeyratne was unable to clarify their terms of detention or guarantee their early release. As some of the inmates began to break some of the camp’s lights and do damage to the camp buildings, two shots were fired, apparently in the air, by the police guards stationed at the camp. According to the Commission – accepting here the evidence of the second in command, Lieutenant Abeyratne – the shots were fired only after he had been attacked and wounded on his side and shoulder. Other testimony, from Captain Abeyratne and one of the inmates, places the attack on Lieutenant Abeyratne after the shots had been fired. (This evidence has since been corroborated by a number of the detainees who survived the attack.) For the commission, however, the inmates were clearly at fault for protesting so violently, and the police were in their rights to fire in the air. The Commission report also clearly locates a major portion of the responsibility for the inmates’ revolt in Anthony (Anton) James. He is named as the ringleader of the agitation. Furthermore, the Commission makes much of the fact that he was a dangerous anomaly in the camp: a “hard core” LTTE cadre, who had served with the LTTE for 13 years and taken part in numerous attacks on the Sri Lankan army and police. That he was in the camp was a serious breach of security to begin with, the Commission report argues.

The Commission goes on to fault the Bandarawela HQI and Captain Abeyratne for agreeing to the inmates’ request that evening to remove the police post within the camp. This not only left the inmates in virtual control of the camp, but by doing so it sent a very dangerous signal of weakness to the local villagers. The police allowed themselves to look powerless. An equally big mistake, according to the report, was Captain Abeyratne’s insistence to the police, and later to the army, that things were under control in the camp. Either Abeyratne was fooling himself, or else he was embarrassed at losing control in his own domain and didn’t want to ask for help. But the Commission argues that his failure that evening to alert his boss in Colombo, the Deputy Commissioner of Rehabilitation, Col. Vipulagune, closed down one avenue of possible intervention. And his refusal later that night to accept the offer by the head of the army detachment – which had just cleared away the villagers surrounding the camp – to enter the camp and “settle matters” with the inmates was another lost opportunity to show the villagers that things were under control and there was no reason to be afraid.

What, then, were the effects of the incidents within the camp, and of the police and army responses to them on the local community? The story the Commission tells, based on testimony from inmates, villagers, police, and others, is as follows. Word that Lieutenant Abeyratne had been attacked and injured – he had conveniently left his blood stained shirt at a neighboring house – quickly spread throughout the area, together with Lieutenant Abeyratne’s warning that “the Tigers” were going to attack the village. This rumour, together with false reports that some Tigers had escaped from the camp, was actively endorsed and spread even by the police posted outside the camp that night. Such stories were particularly powerful given the popular fears and hatred of the LTTE, emotions which had recently been strengthened by the Sinhala nationalist tenor of much of the election campaign in the preceding weeks, as well as recent funerals in the area of three soldiers and one army Major. The withdrawal of the police post within the camp and the warnings from the police themselves of possible attacks fed distrust of their ability to protect the camp’s neighbors.

In addition, the Commission finds clear evidence that a significant degree of organizing took place in the twelve to fourteen hours between the initial protest in the camp and its violent destruction. Lieutenant Balasuriya, who led the army detachment that dispersed the crowds on the 24th night, testified before the Commission that villagers told him they were planning to demonstrate against the camp the next morning. At eight in the morning of the 25th, the District Secretariat had received a telegram announcing such a demonstration, signed in the name of the Sapugasulpatha villagers. Further evidence reveals that at least fifteen of the anti-camp posters that went up on the 25th morning had been made by residents of Aluthgama, another of the camp’s neighboring hamlets (one villager’s handwriting was matched to the posters). And finally, the Commission report confirms that vehicles were used to transport protesters to the camp – at least 10-15 vehicles (vans, buses, and three wheelers) were seen that morning at the entrance to the Vidyapeetaya Technical College that bordered the camp. The Commission report suggests these vehicles might have been the work of “extremist elements to exploit the situation to achieve their own objectives.”

The Events of October 25th

The Commission report also offers some further useful points of clarification about the events of the morning of the 25th. Testimony by local residents seems to have established that some 15-20 inmates were visible early that morning outside their barracks carrying poles and screwdrivers. The crowd was heard shouting threats of murder. Given the murderous slogans written on the posters that went up in and around Bindunuwewa that morning – such as “Feed Tiger flesh to our dog” – it is clear that some in the crowd had come to kill, not just demonstrate. The crowd outside initiated the violence by throwing stones at the inmates [I’ve reworded this to remove passive voice, making clear that it was the crowd who threw the stones – OK?]. The inmates reacted to the provocations by exploding a gas cylinder within the camp. While this initially succeeded in frightening the crowd, its ultimate effect seems to have been to further inflame things, as the crowd soon thereafter stormed the camp as the police looked on. Witnesses state that large crowds were standing outside the camp’s main gate prior to the attack with armed police standing amidst them, doing nothing to disperse them, or keep them at bay.

That there was an utter failure on the part of the police stationed around the camp is beyond dispute. The Commission report strongly criticizes the two most senior police officers in the area – ASP Dayaratne and HQI Seneviratne – for a series of failures. This begins with their failure to stay at the camp overnight, which would have sent a strong signal to the villagers; indeed, they didn’t even wait to get a report back from the army contingent sent to disperse the crowd on the night of the 24th. Their failures were further compounded when they chose not to send the riot squad from the Bandarawela police station, even after being warned the next morning by the highest-ranking officer stationed overnight at the camp, Inspector Karunasena, that large crowds were gathering and buses had been stopped near the camp. The ASP and the HQI failed to send any additional police from the Bandarawela station. Even at the last moment, the inmates could have been evacuated from the camp.

Once the attack began, no attempts were made to stop the invading crowd. Not a single arrest was attempted or made by a single police officer (out of more than 60 stationed at various points around the camp). Given that not all of the hundreds, perhaps even thousands, gathered at the camp were armed, the Commission argues that the police could, as a last resort, have shot at the relatively small number in the crowd who did have weapons – what the report calls “the criminal elements.” Instead the only shots fired seem to have been at the inmates – and their deaths were clearly not accidental, as the one inmate who died from by gunshots had seven bullet wounds on his body. The Commission is particularly critical of Inspector Karunasena – whom it holds was the highest ranking officer at the start of the attack – for ordering the police to shoot: “the order to shoot by Inspector Karunasena and the act of shooting by three policeman consequent to that order were more than what was warranted in the circumstances,” the Commission states. Precisely what happened with the shooting remains ambiguous. Karunasena admits ordering his men to fire in the direction of a number of inmates as they were running towards his officers in an attempt to escape their pursuers. But what he intended by this order is not clear. Did Karunasena in fact order his officers to fire on the inmates? Did he order them to fire at those who were chasing the inmates, as he implied in his Commission testimony, but the inmates were hit instead? Or did he order his officers to fire in the air, as he claimed during the trial, but some of them choose to fire at the inmates instead? The fact that Karunasena didn’t immediately take action or publicly denounce his officers for hitting the three inmates and killing one of them is suspicious, to say the least.

However, whether Inspector Karunasena really was in charge at the time of the attack remains in doubt. No one disputes that Karunasena was placed in charge of the police detachment left at the camp overnight, or that he was in charge of initially detailing the additional squads of police that arrived from various other local police stations at about 6:45 on the morning of the 25th. After that, things get more murky. According to Karunasena, both ASP Dayaratne and HQI Seneviratne were there at the camp from 7:30 am onwards. Another police officer, Sub-Inspector N.S. Walpola (who along with Karunasena, was later indicted and put on trial), identifies the ASP as being near the barracks before the attack. Of course, the interests of both Karunasena and Walpola would be served if it was accepted that their superior officers had been on the scene. But other, less interested parties also identify the ASP and HQI as being there at least by the time the attack was in full swing. Captain Abeyratne stated in his testimony before the commission that he had seen ASP Dayaratne there at the very early stages of the attack, before the crowd had had a chance yet to set fire to the camp (many of the inmates were either burned to death or had their bodies burned afterwards). And according to an even more reliable witness, the Bandarawela Divisional Secretary, W.N.R. Wijeyapala, the ASP and HQI were both well inside the camp when Wijeyapala arrived, soon after 8:30 am, as the attack was actively underway.

Thus, if Captain Abeyratne’s and the Divisional Secretary’s testimony are correct, the ASP and HQI were there early enough to be as responsible for the shootings and killings of the inmates as any of the other police officers. And indeed, the Commission accepts that the ASP and HQI were at the scene while the attack was going on: “I have no doubt that … both the ASP and HQI were present in the Rehabilitation Centre while the crimes were still taking place and assailants were freely moving about carrying weapons inside the Rehabilitation Centre.”

While the Commission report is severely critical of the ASP and HQI for their inaction, which it classifies as “dereliction of duty,” it nonetheless presents their failure as one of negligence and indifference, rather than the result of foreknowledge, acceptance, or willful complicity in the attack. “Evidence which I have already discussed in my report do establish that ASP Dayaratne, HQI Jayantha Seneviratne, Inspector Karunasena, Sub-Inspectors Walpola, Ratnayake and Abeynarayana were around whilst the crimes were committed inside the Rehabilitation Centre [sic].” Of these officers, the Commissioner goes on to write, “I have come to the conclusion that the conduct of [these] officers on 25.10.2000 should be the subject of a disciplinary inquiry, for the reason that their inaction, and attitude at the time of the incident is indefensible. There is ample evidence that they were present at the time of the incident and made no effort either to avert the attack or to disperse the mob and arrest the offenders.” Without offering any explanation, however, the report chooses to disregard the claims of Karunasena and Walpola that their superior officers had been there from the beginning, choosing instead to accept the ASP’s and HQI’s claims that they were on their way to a disciplinary hearing in Badulla when they got the news of the attack, and only got to the scene after it was too late to prevent the violence.

There is significant circumstantial evidence, however, to suggest that more might well have been going on than the Commission’s framing of the events allows one to see.

A host of evidence exists that implicates the hierarchy of the Bandarawela police in a pattern of animosity against the inmates, likely foreknowledge of the attack, and falsification of evidence afterwards – which adds up to something significantly more than negligence. For instance, with respect to the actions of the police, there is strong evidence that HQI Seneviratne was angry at the way the inmates had treated him when he had visited the camp on the evening of the 24th. According to videotaped interviews with the HQI and with others who had been at the scene, it is clear that the HQI felt humiliated by being forced to enter the camp unarmed and negotiate with people who were, after all, suspected and surrendered LTTE cadres. According to one reliable source who had been at the scene, the HQI had denounced the detainees when he was leaving the camp that evening. In a voice loud enough to have been heard by the crowd that had gathered around the camp, the HQI is said to have pronounced something to the effect that, “these people are bad people, they overran the police post, they forced me to come in without a gun and put knives against our throats.” In addition, we know from the Commission report and other sources that the anti-camp posters, with their homicidal and bitterly anti-Tamil slogans, had gone up the night of the 24th not only around the camp, but in Bandarawela town, too, and that the police would certainly have seen them. We know from eyewitness testimony before the Commission that the police stationed at the camp on the 24th were themselves spreading rumours that the Tigers would attack the village. And the Commission has also established that the ASP and HQI lied when they claim to have fired tear gas during the attack. (Indeed, they had chosen not even to supply their police at the scene with any tear gas at all). Not only did they lie to the investigating authorities, but CID discovered that they had ordered their men in the days immediately after the attack to discharge tear gas in a nearby quarry, so as to create evidence that they had done their best to disperse the attacking mob. And finally, we also know that the Bandarawela police deliberately kept their duty logs from being seen by investigators from the Human Rights Commission.

The Commission also failed to investigate and report upon the distinct possibility that the attack had been planned, or at least aided, by forces outside the surrounding villages. The Commission report leaves unexamined the identities of the owners of the vehicles that came to the camp on the morning of the massacre. The political affiliations of those involved in the attack remain unexplored, although rendered relevant in this context by evidence placed before the Commission. Many of the posters bearing racist and anti-camp slogans were written on the backs of People’s Alliance election campaign posters. The possible connections with other political forces also remain unexplored: for instance, the role of the local Sihala Urumaya organizer, who lived directly opposite the turn off to the Bindunuwewa camp from the Badulla-Bandarawela road; or reports about the Sinhala nationalist political leanings of some of the homeguards posted to the rehabilitation centre.

Instead, the Commission report offers blanket assurances that there is no evidence to suggest the attack was planned by outside forces. The Commissioner states toward the end of his report that “I have also placed on the record that this attack was not master-minded or planned by any external forces and that it was not a pre-planned one.” Such a blanket statement, without any other evidence in the report that such a possibility had been seriously investigated, is clearly not adequate.

While the Commission report certainly adds much to our knowledge about the massacre and the conditions that led to it, and should be made available to a wide public, the overall framework it employs to interpret the attack obscures many of the deeper political dynamics at work in the camp and the rehabilitation system and largely depoliticizes the attack itself. Unfortunately, what knowledge the report does have to offer had until recently been unavailable to all but a very small handful of people, as the Commission’s report has yet to be released to the public by the President.

The Trial-at-Bar: 25 March 2002 – 1 July 2003

The Indictment

Unfortunately, many of the most important findings of the Commission don’t seem to have been taken into account in the indictments, framed by the Attorney General’s Department, that constituted the framework for the High Court’s Trial-at-Bar. The story of the massacre proposed by the prosecution in its indictments and in the trial follows the general outlines of what is found in the Commission report: it tells the story of a massive crowd spurred into action by fear and rumours of marauding Tigers, and of police who failed miserably in their job of protecting the camp and its inmates, becoming a part of the mob they were supposed to control. Yet, crucially, there were no indictments of the ASP or the HQI, despite all the evidence uncovered by the Commission. Nor was anyone prosecuted for any planning, or foreknowledge, of the attack. It was, instead, a story of rage and hatred and fear getting out of control and police getting caught up in violent forces they should have kept in check.

In the indictments handed down in March 2002, 31 local residents and 10 police offers were each accused of 83 counts. The 83 counts were composed of five categories: 1) one count of belonging to an unlawful assembly with the common object of causing hurt to the detainees (section 140 of the Penal Code); 2) twenty-seven counts of murder in prosecution of the common object of the unlawful assembly (section 296 read with section 146 of the Penal Code); 3) fourteen counts of attempted murder of the surviving inmates in prosecution of the unlawful assembly’s common object (section 300 read with section 146 of the Penal Code); 4) twenty-seven counts of murder “on the basis of the Common Intention shared among the doers of the acts of offence” (section 296 read with section 32 of the Penal Code); and 5) fourteen counts of attempted murder on the basis of Common Intention (section 300 read with section 32 of the Penal Code).

The basic legal argument was two-fold. First, that those accused who were identified as members of the crowd and as being armed with weapons constituted part of a larger “unlawful assembly,” which was animated by a common object of attacking and killing or harming badly the inmates. Having a “common object” was here understood not to require explicit agreement between all or any of the members of the assembly, but as a goal that can be ascertained through knowledge of the shared actions and manner of the individuals involved. While the actual involvement in the assembly by each accused must be proven individually, each member of the unlawful assembly takes on a vicarious responsibility for the actions of all the other members. Thus the prosecution was arguing for convictions of the accused “villagers” first for being members of the unlawful assembly (count one), and then for the specific acts of murder and attempted murder that the crowd as a whole committed (counts 2-42). They did not have to show that any given accused had committed any specific acts of murder or attempted murder.

For the police officers among the accused, another strand of argument and evidence had to be added. The case was made that the police posted to protect the camp became members of the unlawful assembly in their failure to act as their legal duty required them to. In standing by as members of the crowd entered the camp and massacred its inmates and in making no attempt to control or arrest any of the attackers, the police came to share in the common object of the unlawful gathering. To make this connection, the prosecution had first to argue that there was ample legal precedent for considering an “illegal omission” to arise from the failure to perform one’s duty, a principle they held was especially well established in cases of homicide.

Of the villagers charged, all had been identified by eye-witnesses as being at the scene of the crime with weapons in hand. Unfortunately in criminal cases of this sort, where it is neighbor who has to testify against neighbor (and, in one instance, relative against relative), eyewitness testimony can constitute a less than reliable foundation. And indeed, at the conclusion of the Prosecution’s leading of evidence, the Prosecution applied to the court to have charges dropped against 23 of the 41 accused, citing lack of evidence. The withdrawal of charges was due to the failure of four witnesses to testify against their accused neighbors consistent with the statements they had earlier made to the CID. One of the ten accused police officers was also discharged at this stage as well.

With respect to the police officers charged, there were problems of a different nature. Of the more than 60 police officers stationed at the camp at the time of its attack, only those of medium rank – Sub-Inspector and Inspector – were charged: they were either those whom witnesses identified as being posted at the main entrance to the camp, or those in charge of one of the detachments sent to guard various other locations around the camp.

This prosecution strategy had two problems. The first and most obvious is the failure to charge either of the two senior officers with any crimes. The Prosecution at the Trial-at-Bar chose to endorse the ASP Dayaratne’s and HQI Seneviratne’s position and make them into crucial state witnesses, despite the incriminating evidence available from the Commission Report and other sources. Second, the Prosecution’s choice of police accused meant that at least some of those who were stationed at the camp entrance and who were responsible for the shootings of the fleeing inmates were not charged. Finally, and more generally, the prosecution strategy had another major drawback: it choose to press only the most serious charges – murder and attempted murder – and yet supported it with no other evidence than eyewitness testimony, which was either from other interested parties (e.g., the HQI and ASP) and thus of questionable value, or from those easily intimidated. This was a high-risk strategy.

The Judgment

Of the remaining eighteen accused, nine were residents from the local area, and of these, the court convicted three. Each was convicted of being a member of an unlawful assembly, and, through their sharing in the crowd’s common motive of death and destruction, each was held responsible for multiple counts of murder, one count of attempted murder, and multiple counts of assault. Each was sentenced to death. The three convicted local residents were those whom the court was able to find some convincing evidence of having actually been involved in the attack within the camp, rather than simply being part of the larger crowd surrounding the camp, which the Court held was not sufficient to make one a part of the unlawful assembly. Instead, they held, some more active manifestation of one’s criminal intention – in all three cases it was that of being seen armed and within the camp premises – was required.

Thus, the fourth accused , Munasinghe Arachchige Sammy, was spotted by an eyewitness first outside the camp, standing with a club in his hand within the grounds of the Teachers’ Training College (referred to in Sinhala as the Vidyapeetaya) which bordered the Rehabilitation Centre. This same witness later saw him inside the camp, still with the club in his hand. Later, as the witness was helping to rescue one of the younger inmates, he was struck from behind by a club. When he looked up, the only person near him with a club was Sammy. Thus the Justices conclude that there is strong evidence that Sammy, by choosing to enter the camp armed with a weapon, had entered into the common motive of the unlawful assembly. The second of the three local residents, accused number thirteen, D.M.S. Dissanayake, was seen by another eyewitness emerging from the Centre grounds with a club in his hand, as the barracks were burning and the attack was coming to an end. Finally, the twenty-first accused, R.M. Premananda, a taxi driver in the town of Bandarawela, was convicted on the basis of the most extensive evidence of anyone: two witnesses described driving with him to the camp, seeing Premananda enter the camp while the attack was ongoing, then seeing him reemerge with a bleeding hand, after which one of the two witnesses drove him to a private clinic where his hand was sutured. The doctor at the clinic who treated his hand also testified at the trial and was able to identify the accused.

With respect to the role of the police officers in the attack, the Court accepted the prosecution’s argument that police inaction amounted to an illegal omission that made them into willing members of the unlawful assembly. In the court’s words, “by allowing a large group of people to gather around the camp, allowing them to enter the camp and burn the halls inhabited by the inmates, allowing them to be present with weapons, allowing them to attack the inmates and kill them, allowing them to attempt burning the bodies to tamper with evidence, while silently watching, shows that the Police aided these actions.” Crucial to the Court’s judgment on this issue was their finding that, since the attack included the burning of the inmates’ bodies, it must have, from beginning to end, taken something on the order of an hour. This would have given the officers plenty of time to make at least some arrests or otherwise express their rejection of the crime. Equally important was the testimony from the survivors that after they had told the police stationed at the camp that they were afraid that the gathering crowd would attack them, they were told to remain in their billets and the police would protect them. Thus the police on duty had ample forewarning and yet had done nothing to disperse the crowd – which the Court holds would have been easily done – or otherwise prevent the attack. For instance, the Court suggests that the police could have chosen to station some or all of its men immediately around the barracks to which they had themselves asked the inmates to retreat. Instead, once the attack was underway, the police not only did nothing to prevent it, they actually took part by firing on the fleeing inmates.

Of the nine police officers still charged when the case went to the bench for judgment, only two were convicted. These were Inspector S.J. Karunasena (the 32nd accused) and Sub-Inspector T.R. Ratnayake (the 41st accused). Both officers were convicted in large part because the Court was convinced that they were stationed at the main gate throughout the attack and therefore were at the center of the action: their failure was manifest.

Karunasena, in addition, bore the burden of the fact that it was believed that he had been placed in overall command of the police detachment at the Rehabilitation Centre. Thus, to some degree, the Court implicitly relies on a notion of “command responsibility” to hold Karunasena accountable, repeatedly emphasizing his role as the commanding officer and blaming him for the overall failure to protect. “This Panel of Judges conclude that defendant 32 had the ability and the means by way of troops to control this situation, and as he failed to do so, he is considered to hold criminal responsibility.”

In addition, Karunasena is specifically taken to task for the deadly shots that were fired at the inmates running for their lives. In an effort to show that he had in fact taken some action to disperse the crowd, Karunasena stated in his dock statement at the very end of the trial that he had ordered his men to shoot in the air. If this is so, then it might suggest that the killing of the inmate was accidental. Yet if that is the case, the court asks, why was it that only inmates were shot, not any villagers? “On the other hand,” the Court writes, “defendant 32 has not stated that anyone shot outside of his orders. Accordingly, this Panel of Judges has to conclude that shooting at the inmates occurred with the knowledge of defendant 32.”

Sub-Inspector Ratnayake, in turn, is also argued to have been at the main gate with Karunasena at the time of the attack. Two witnesses, both of them Police Constables, are cited as giving testimony that locates Ratnayake at the main gate. His inaction, like Karunasena’s, is said to have made him a full member of the unlawful assembly and thus criminally liable.

Both Karunasena and Ratnayake made dock statements in which they stated that the ASP and HQI were present at the start of the attack, and that it had been the duty of their superiors, not them, to order action taken against the attackers. Attempting to escape responsibility, the ASP and HQI have blamed them instead. In both cases, the Court ruled that both defendants and their lawyers had had ample time to cross-examine the HQI and ASP when they were giving their testimony, but none did. The fact that they both raised this issue for the first time only in their dock statement (where they cannot be cross-examined) is further reason to discount their claims, the Court reasoned.

The other seven officers were all acquitted. This included Sub-Inspector Jayaratne, the 33rd defendant, who was stationed under Karunasena’s command at the main gate. The court cites the HQI’s testimony that it was Jayaratne who telephoned him to alert them to the attack on the camp just as he and the ASP were heading to Badulla. “Thus,” the High Court argues, “according to the behavior of defendant 33, he had informed higher officers about the incident at the beginning of the incident, and requested help. Accordingly, it cannot be concluded that defendant 33 held the common motive held by the others gathered to do harm to the inmates, or that he acted with that common motive.”

The remaining six officers were all judged to have been located too far away from the interior of the camp to have known what exactly was happening: the Justices write that “it has been proved that defendants 34, 35, 36, 38, 39, and 40 could not clearly see the camp from the place at which they were positioned.” Thus they could not be said to have joined with the unlawful assembly.
Interestingly, this group includes Sub-Inspector Walpola, defendant 38, who is acquitted, despite the Commission locating him clearly at the Vidyapeetaya playground, from which large numbers of the crowd surged into the camp, and from which vantage point one could see everything going on in the camp. For some reason, however, the prosecution’s written submission makes no specific mention of his location or his specific culpability: Walpola is simply included together with the other 6 officers who were posted elsewhere, some of whom, one could argue, were indeed too far from the scene to have done anything. (Whether this absolves them of all responsibility, however, is questionable, as it’s unlikely that they wouldn’t have heard the noise of the attack and the inmates’ cries, seen the smoke from the burning buildings, and known something was happening.)

Unanswered Questions

The judgment, and the trial as a whole, while welcomed by many for the much needed precedent it seemed to set for the punishment of official misconduct and anti-Tamil violence, nonetheless left a host of unanswered questions, some of which were taken up during the appeal to the Supreme Court’s appeal, though others were not. These questions can be grouped into two general categories: questions of fact, and questions of law, procedure, and fairness.

Questions of Fact

1. The first question concerns the basis of the conviction of one of the two police officers, Sub-Inspector Ratnayake. The prosecution case for locating Ratnayake at the main gate during the attack on the Centre was surprisingly uncertain. It depended on the testimony of two police constables, but neither had actually been able to locate Ratnayake unambiguously near the main gate at the start of the attack. We do know with certainty that Ratnayake was at the main gate after the attack. He was present while the injured, and perhaps bodies of the dead, too, were placed in a police truck at the conclusion of the attack, some time after 9 am. We know this from a photograph taken by a police photographer, and confirmed by the eyewitness identification of Ratnayake and Karunasena by Police Constable R.D. Mangalasiri. But this is after the attack. And however damning the pictures are – they show the police officers standing at ease next to numerous club-wielding villagers with bodies of victims lying on the ground – they were clearly taken after the attack had largely concluded, so they tell us nothing about where Ratnayake was at the time the attack began. What remains unclear, then, is why the prosecution was unable to offer a stronger case for Ratnayake being at the main gate, or at some other strategic position, when the attack happened. The Commission on its part was certainly convinced that Ratnayake was at the main gate. During the Commission hearings, one of Ratnayake’s colleagues, SI Walpola, located Ratnayake at the main gate at the start of the attack. However, as one of the accused, Walpola did not testify against Ratnayake. It is thus not surprising that the prosecution at the very start of the appeals process in June 2004 agreed not to contest Ratnayake’s appeal, accepting his claims that there was insufficient evidence to convict him. He was immediately acquitted of all charges. (As a result, his case was not even considered in the Supreme Court judgment of May 2005.)

2. The use of photographic evidence by the prosecution itself raises a number of important questions. The prosecution accepts that the photographs were taken after the attack was over and show no specific crimes being committed. Yet the photos were obviously meant to influence the Court’s interpretation of the attitudes displayed, and actions (not) taken, by Karunasena and Ratnayake towards the attacking mob, large numbers of whom can be seen in various photographs submitted in evidence. And while the High Court doesn’t make reference to them in their judgment, it remains possible that their opinions about the location of Ratnayake were nonetheless affected by having viewed the photos. A further set of questions arises here: if the point of submitting the photos into evidence is to show that the police took no action in the wake of the attack, even as armed attackers were still comfortably mingling amongst the police within the camp, then the photos would seem to implicate the HQI and ASP as well, since they were unquestionably on the scene – even by their own testimony – at the time that the photos were taken. In addition, why was the whole roll of negatives, preferably the originals, not submitted? Based on the testimony of police photographer P.A. Kurukulasooriya, we know that not all of the photographs taken were submitted into evidence and we know that the photos that were submitted were made from negatives that were themselves not the originals, but copied from the first set of “positive” photographs. That second set of negatives was cut up, with only some photographs put into evidence. What, or who, was shown on the missing negatives?

3. This leads us to the most crucial question of fact: why were no charges filed against the HQI and the ASP? It would seem, based on the findings of the Commission and numerous witnesses interviewed over the past four years of independent investigation, that a strong case might have been made against both officers for having been on the scene from the beginning of the attack. At the very least, clear evidence exists for charging them with various crimes once the attack had begun. This would include the obvious dereliction of duty in making no arrests, in allowing the deaths of inmates in the police truck parked at the main entrance, in allowing some inmates to be shot, and for the suppression of evidence involved in moving the dead bodies before the magistrate was able to arrive and perform post-mortem examinations. The High Court judgment cites this last crime in particular, but blames it instead on Karunasena, despite the ASP’s own admission that it was he who gave the order to dispatch the bodies. Why, then, were no charges filed against the senior officers? Was it because, as one of the State Counsels involved in the case stated in an interview, there was no evidence against them? Would no one have testified against them? Karunasena and others certainly did so in their testimony before the Commission of Inquiry. The fact that HQI Jayantha Seneviratne has now been promoted to a better position in Colombo, is viewed with great suspicion among many. (ASP Dayaratne is now retired.)

4. Closely related is, especially by defence lawyers representing Karunasena and Ratnayake. Why weren’t Karunasena and Ratnayake allowed to testify and state their cases under oath, rather than waiting until their much weaker interventions from the dock? Was it because their lawyers imagined – based on the historical record and what they thought was a weak case against their clients – that the police would be acquitted and so didn’t need to take the risk that such testimony would entail (at the very least to their careers as police officers)? Why didn’t they call as a witness the Bandarawela Divisional Secretary, who testified to the Commission that the ASP was there in the camp very early on in the attack? Could these decisions be explained in part by the fact that the lawyers for Karunasena and Ratnayake were also the lawyers for SI Jayaratne, who escaped conviction solely on the basis of the HQI’s own testimony that it was Jayaratne who alerted him to the mob attacking the camp?

4. The shooting of the fleeing inmates is another crucial point where there remain more questions than answers. The inmate who was shot to death had six bullet wounds on his body from three separate bullets – yet none of the bullets could be entered into evidence. According to testimony given to the Commission by Mrs. K.K. Joowzir, who was the Assistant Judicial Medical Officer who performed the autopsy, she gave the three bullets to “an investigation officer” whom she was later unable to identify. This was a violation of proper legal procedure, and the bullets never reappeared. As a result, there was no evidence to connect the shooting and death of the inmate to any particular police officer. Toward the end of the trial, the prosecution did try to introduce into evidence three T-56 rifles and various used cartridges. But under cross examination by the justices, the Government Analyst could not show any clear, uncontaminated, chain of evidence linking the rifles and cartridges to specific police officers. The justices therefore refused to allow the evidence to be submitted. The Prosecution’s written submission states that they weren’t able to learn who was using which gun. But is this true? And if so, why? Are no such records kept? One source in the Attorney General’s office explained that it wasn’t possible to match the spent cartridges found at the scene to particular guns, only to the general type of gun. But if this is so, why attempt to submit these three guns into evidence in the first place? These would all seem to be crucial questions, but what kinds of investigations, if any, took place, and by whom, remains publicly unexplained.

Questions of Law, Procedure, and Fairness

1. The general line of defense taken by Karunasena, Ratnayake, and their police colleagues was to challenge the fairness of prosecuting them for illegal omission that rendered them part of the unlawful assembly. To convict someone of murder and attempted murder should require direct evidence of specific actions by specific individuals. Instead, they argue, first, that they were merely following orders and, second, that they were unable to control the crowd – in large part because the HQI and the ASP hadn’t given them the necessary resources: anti-riot equipment, rubber bullets, tear gas, or enough men. How one judges their claims to have been unable to control the crowd depends to some degree on how many people were among the crowd, and of these how many were actually armed. Many witnesses testified to crowds of 2,000 to 3,000 people, yet these would seem to be exaggerated figures for the space involved, and clearly not all the crowd entered the camp, nor was the entire crowd armed. Furthermore, none of the attackers were carrying firearms. In defense of his clients, President’s Counsel Daya Perera argued that there is an established principle of law that would hold in this case that the prosecution must show that their interpretation of police (in)action – i.e., that the police shared the common motive of the unlawful assembly – is the only possible or necessary inference from such (in)action. In this case, that standard hasn’t been met, he argued, as there are other possible inferences: e.g., that the police were paralyzed with fear, or that they were too scared, especially given their lack of resources, to shoot and kill the attackers, for risk of making the huge crowd turn on them. This is a line of reasoning, as we will see, that the Supreme Court makes central to its acquittal of Karunasena.

2. The first question is immediately involved in a second one, which concerns the failure to examine the degree of involvement of the HQI and the ASP. The fairness of the verdict is clearly reduced by the obvious involvement of the HQI and ASP (whenever one believes they arrived on the scene). If the High Court judges’ intention was to convict those they felt were effectively in charge of protecting the camp, then it clearly is a problem that they didn’t have the option to convict HQI Seneviratne and ASP Dayaratne. On the other hand, if the intention was to convict those people who facilitated the mob to do their work, then it would have been better to have more specific evidence of actual acts committed – such as who fired the deadly shots, or who allowed the killings to take place in the police truck. The lack of direct evidence linking specific people to specific criminal acts was clearly one of the reasons why the indictment of the police personnel was framed as it was, namely by charging the police with vicarious responsibility through sharing in the common motive of the unlawful assembly. Yet if this was to be the route to justice, stronger evidence of the exact location of the specific officers would have been beneficial. Assuming the Prosecution’s version of events is accurate, then Karunasena and Ratnayake surely weren’t the only police committing an illegal omission in allowing the crowd to enter the camp.

3. Finally, theses issues raise basic questions about the prosecution’s high-risk strategy of choosing to prosecute only the most serious crimes – murder and attempted murder – but with relatively weak evidence against many of the accused. With hindsight, this was not the wisest strategy. Would it not have made sense to include other lesser charges as well, as suggested above -- suppressing evidence, aiding and abetting the crowd, dereliction of duty -- even if this might have given the Court the chance to convict on these lesser charges instead of murder and attempted murder? While the gamble paid off in the courtroom in the form of convictions, it may well have contributed to the Supreme Court’s ultimate acquittals. It certainly exacted a high political price even before the appeals process began: the message sent by having some police officers sentenced to death on indirect evidence, even as the HQI and ASP remain untouched, turned out to be far from conducive to either harmonious ethnic relations or to faith in the formal system of justice.

What the SC decided and why

With the death sentences came an automatic appeal to the Supreme Court. A five-member bench, originally headed by High Court Justice J.A.N. Silva, began hearing the appeals from all five of those convicted in June 2004. Sub-Inspector Tyron Ratnayake was almost immediately acquitted of all charges, after the Attorney General’s Department agreed that there was insufficient evidence against them. With Justice Silva having to leave the panel before deliberations had concluded, the bench was reconstituted under the leadership of T. B. Weerasuriya and arguments heard again in their entirety in November of 2004.

On June 1st 2005, the five-member bench of the Supreme Court announced the acquittals of the remaining four persons – M.A. Sammy, Sepala Dissanayake, R. M. Premananda, and Inspector of Police Jayampathi Karunasena. The court held that the three civilians and one police officer were wrongly convicted by the High Court given the lack of evidence that any of the four were actually members of the unlawful assembly that had committed the massacre.

In the case of Sammy, the Court held that the one witness who testified against him could place him at the scene of the crime only towards the end of the attack. Given that there were many understandable reasons for people to have been drawn into the crowd without therefore becoming members of the unlawful assembly, the Court held that it was “safer” to require some clear evidence that Sammy had shared the mob’s intention to harm the camp inmates. In the absence of such evidence, his mere presence in the camp was not sufficient to render him a member of the unlawful assembly.

In the case of Sepala Dissanayake, the Supreme Court was even more emphatic: the credibility of the sole witness who testified against him had been so seriously undermined in the course of cross-examination that his testimony could not reasonably be relied upon.

As for R. M. Premananda, the Court held that the High Court had failed to take into account a whole range of evidence that called into question Premananda’s membership in the unlawful assembly. The Supreme Court further held that the High Court had been wrong to apply two separate legal principles that were used to further establish Premananda’s guilt. As a result, he, too, had been unfairly convicted.

Finally, in the case of IP Karunasena, the Supreme Court held that the judgment of the Trial-at-Bar had misinterpreted a range of evidence presented at the trial and had failed to take into account many ways in which the police detachment under Karunasena’s command had in fact done its best to prevent and mitigate the attack on the detainees. As a result, there was insufficient evidence to hold that Karunasena had, either through illegal omissions, specific illegal acts, or general intentional failure to discharge his legal duty, joined in the intention of the unlawful assembly to do harm to the camp inmates.

Setting the Stage

Before turning to the specific arguments the Supreme Court makes to support its acquittals, it is important to analyze the way in the Court frames the events leading up to the attack on the camp, as this is crucial to their understanding about what motivated the crowds that gathered around the camp and what distinguishes the bulk of the crowd from the smaller group that constituted the unlawful assembly. One of the most striking – and consequential – aspects of the Court’s judgment is how radically it transforms the portrait of the situation preceding the massacre that emerges from the exhaustive investigations of the Presidential Commission of Inquiry, as supplemented by the interim report of the Sri Lankan Human Rights Commission and independent research conducted by this author and others. Presenting the crowd as having gathered for peaceful purposes and as merely reacting to the inmates’ threatening and provocative actions, the Court effectively blames the inmates for their own attack.

To present this portrait, however, the Court must accept without question many claims that cry out for close scrutiny while neglecting to mention many other crucial pieces of evidence. Thus they present as fact the disputed claim that the inmates had tried to grab weapons from the guards in the camp on the evening of the 24th. They accept as fact the discredited and counter-intuitive claim that it was the inmates who initiated the stone throwing, not the crowd around the camp. The Court states as well that the crowd was made up only of “villagers” who had gathered to stage “a peaceful Sathyagraha” calling for the removal of the camp, implying that this “gathering” had been planned prior to the incident in the camp and neglecting to mention that many of the posters “calling for the removal of the camp” also called for the murder of the inmates.

When the Court sets the scene on the morning of the 25th, they mention only the weapons held by the inmates, not those many more weapons held in the hands of the gathering crowd, nor the fact that among the “villagers” who had gathered were many brought in by vehicle to Bindunuwewa from Bandarawela and the surrounding area. The Justices also imply that that the actions of the crowd posed no threat to the inmates, despite the forty-one young men being completely surrounded by large, hostile, armed, and entirely Sinhala crowds – estimated by most people at 2-3,000 people -- and Sinhala police armed with guns. In painting this portrait of a peaceful crowd some of whom were eventually provoked into murderous fury by the actions of the inmates, the Court also had to ignore the clear evidence that the detainees actively pleaded for peace from the crowd: for instance, their displaying a banner that announced that they had no quarrel with the villagers, only with the camp authorities.

Only through this questionable reading of the evidence can the Court plausibly argue that “it was evident that the immediate cause for the attack by a section of the crowd was the provocative act of the detainees, in charging into the crowd with clubs, rods, and stones in their hands. [In fact, no evidence was presented that the inmates charged “into” the crowd, only that some of them rushed toward the crowd, evidently in a counterproductive attempt to show they shouldn’t be bothered.] The crowd having retreated for a moment, which reflected a moment of having got frightened, nevertheless broke into the camp with all their fury… It is from this point one could assert with justification the commencement of the unlawful assembly with the common object of causing hurt to the detainees.”

Setting the stage in this way is important for the Court’s argument, given how they approach the difficulties involved in the law of unlawful assembly. Citing the relevant section of the Sri Lankan penal code, the Court establishes that to become a member of an unlawful assembly, one must be shown to have joined intentionally, knowing the common unlawful object of the group. Once this is established, an individual can be held vicariously responsible for any of the actions of the unlawful assembly if they can be shown to have been committed in prosecution of the common objective or to have been offences that members of the unlawful assembly knew were likely to be committed in the prosecution of that common objective.

Making use of a number of established legal commentaries, the Court holds that, on the one hand, mere presence in a crowd isn’t enough to render one a member of an unlawful assembly. This is particularly true in rural societies, they argue, where many people may gather at times of social tension merely out of curiosity, and some innocent bystanders may be caught up in the midst of events whose animating objective they have no intention of sharing. On the other hand, the Court acknowledges that no overt act by an individual is required to establish his membership in the unlawful assembly. Nonetheless, the Court ultimately stresses the argument of one legal scholar that “it will be safer to look for some evidence of participation by him [i.e., a given suspect] before holding that he is a member of the unlawful assembly.”

Acquittals of the Civilians

When one turns to the specific arguments that the Supreme Court panel offers for its acquittal of the three civilians, however, it is not clear that their decisions in fact depend directly their general position on the law of unlawful assembly. What is more striking than any given application of legal principles are a host of questionable interpretations and selective readings of the evidence, which render the Court’s acquittals in at least two of the three cases open to considerable debate.

For instance, in the case of the first appellant-accused, M. A. Sammy, the Court argues that contrary to the claims of the prosecution and the High Court, the primary witness against Sammy, E. A. C. Ariyasena only places him in the camp at the very end of the attack, since Ariyasena testifies that the detainees’ billets, in which most of them were seeking refuge during the attack, were already on fire.

However, it was established that the inmates’ billets were set on fire relatively early in the attack and that much killing and mob destruction continued while they burned. In addition, as Ariyasena’s uncontested testimony establishes, there were still at least two boys to be rescued from the fires and the mob at the time he reported seeing Ariyasena – so the precise “stage” of the attack at which Sammy was seen in the camp is largely irrelevant. Furthermore, the chronology that the Court itself relies upon includes both the testimony of Ariyasena and that of the second prosecution witness, Piyasena, suggests that the billets could have been on fire anywhere from 8:30 to 9:30, when the attack is generally taken to have largely concluded. This renders questionable the value of specific references to the time of day of particular sightings or actions

The Court makes much of how there were many non-criminal reasons – from curiosity to fear to desire to remove the camp non-violently – that people might have had for being part of the crowd watching the events. The Court stresses how easy it would have been for innocent people to get caught up in the crowd. They stress the fact that according to Ariyasena’s own testimony, at least one person within the camp at the time Ariyasena saw Sammy was willing to assist in rescuing the boys. To the court’s mind, this proves that not all of those in the camp during the attack shared the murderous intention of the unlawful assembly.

Three points are relevant here, however. First of all, there is nothing within the law of unlawful assembly that rules out the possibility that a member of the unlawful assembly can also choose to refrain from taking other criminal acts. To have helped rescue two of the inmates isn’t necessarily inconsistent with also being a member of the unlawful assembly. Second, and more generally, the line between where the crowd as a whole gathered and where the mob did its violence was quite clear. One had to make a conscious choice to cross that line and enter the camp; most did so either by climbing the hill that leads up to the main entrance, or by climbing down from the Vidyapeeta playing fields that overlooked the camp. And third, the area in which the murders and destruction took place was quite restricted. To have crossed the line into the camp and the scene of the crime is necessarily to have become aware of the terrifying violence that was taking place: there is no way to have been so close to the attack without knowing what was happening.

In the end, then, the fact remains that Sammy was identified as being within the camp, with a weapon, while the attack was still ongoing and crimes were being committed. Surely to be armed and within the camp while inmates within sight and within hearing are still being chased down and killed, dismembered and burned, is effectively to endorse those crimes and become a member of the mob, even if Sammy took no specific violent actions himself. To downplay the evidence against Sammy is effectively to transform the law of unlawful assembly by requiring that evidence of specific acts of violence or other overt expressions of criminal intent be provided in order to prove membership in the unlawful assembly.

In the case of the third appellant-accused, R.M. Premananda, the Court accepts that there is no dispute that he went to the camp voluntarily, entered the camp while a “commotion” was going on, was inside for 10-15 minutes, emerged from the camp with a bloody gash on his wrist, and then he lied about his identity to the doctor who treated him. Nonetheless, the Court holds that there is insufficient evidence to find that Premananda went into the camp with any criminal intention. Indeed, they argue that the evidence in his favor undermines even the prima facie case against Premananda that the High Court believed existed. It was on the basis of this belief that the Court applied to so-called Ellenborough Dictum, according to which when an accused has the power to explain his behaviour but refuses to do so, it is justifiable to conclude he is silent because speaking would harm his case.

On what grounds does the Court dispute the existence of a prima facie case against Premananda? Crucial to the Court’s position is the testimony of Premananda’s friend, Padmananda, who held that it was he who had relayed to Premananda the story that the inmates were attacking the village, and he, Padmananda, who had suggested driving to the camp. The court also accepts as fact Padmananda’s self-serving testimony that when he and Premananda and their other friend, Sugath Jayantha were on their way to the camp they had not discussed “anything pertaining to the incident in the camp suggestive of any positive act either offensive or defensive in nature.” (This despite their certainly having seen the many posters along the road to Bindunuwewa calling for the violent removal of the camp and its inmates.) Together with the fact that Premananda entered the camp unarmed and that “at the time he went into the camp, there was a commotion,” the Court holds that

“it would appear that their visit to the camp was solely motivated by curiosity on the
information that the detainees were attacking the village.”

One striking aspect of the Court’s argument here is its willingness to accept as established fact the claims of Premananda’s friends that they went to the camp with no violent intentions, but only curiosity. While it is certainly fair to note that no evidence was presented that suggests, much less proves, they first went to the camp with criminal intent, it seems quite different to use as proof of the absence of criminal intention their own narrative.

Even more remarkable is the Supreme Court’s rejection of the Hight Court’s use the so-called Lucas Principle, which holds that a statement made in or out of court that is proved or admitted to be false and can be shown to be motivated by the fear of truth and the realization of guilt, can be taken as corroboration of other incriminating evidence or testimony. The false statements that the High Court panel had in mind were the false name that Premananda gave to the private doctor to whom his friend took him immediately after leaving the burning camp, and Premananda’s denial that he ever entered the camp. About this latter denial, which the Court itself at one point implicitly rejects, it is here strangely silent.

With respect to Premananda’s providing the doctor with a false name, the Supreme Court rejects the idea that this is any evidence that Premananda was afraid of revealing his guilt. They cite the fact that the friend who brought him in for treatment was well known to the doctor, thus making it easy enough to trace Premananda’s real identity. The Court also finds it notable that there is no evidence that Premananda either gave a false address or tried to suppress the evidence of his friend who drove him to the doctor. Surely, though, the fact that Premananda’s lie was a weak and unconvincing one doesn’t mean it wasn’t motivated by a desire to protect himself from being caught. (The Court chooses to ignore another suggestive bit of evidence, which the High Court made much of: the fact that Premananda chose to be treated in a private hospital rather than a free public hospital, even though Premananda had to borrow money from his friend to pay for the treatment.)

Equally surprising, the court cites as evidence in Premananda’s favor the fact that no medical evidence was presented that contradicted his claim that his injury was caused by aluminium sheeting – indeed, the simple fact that there were aluminium sheets within the camp, the Court argues, further lends his story credibility. These seem strangely weak arguments to present in Premananda’s defense, however, given that the metal sheeting in the camp was used to construct the billets in which the inmates were housed – and killed – which would place Premananda very close to the scene of many murders. Surely his injuries don’t have to have come from a knife or other weapon in order to be evidence of his participation in the unlawful assembly? What’s more, by making reference to the existence of metal sheets in the camp as the likely cause of his injury, the Court actually presents as evidence in Premananda’s defence claims that Premananda himself rejected – for it was Premananda’s own testimony on the witness stand that he had never entered the camp at all, but had only watched from near the tube well close to the driveway that leads to the main entrance. About this glaring contradiction in Premananda’s position, which the High Court made much of, the Supreme Court is silent.

In the end, then, the fact remains that Premananda was proven to have entered the camp voluntarily while the attack was ongoing, to have remained amidst the terrible violence for 15 minutes or so, to have been injured, and to have lied about it both immediately afterwards and during the trial. Nothing the Supreme Court judgment makes reference to in any way undermines the damning nature of these facts.

Acquitting the Police

With respect to their acquittal of Karunasena, the Supreme Court is on firmer ground. From a fair reading of this evidence presented at trial, it is clear that there wasn’t enough to prove beyond a reasonable doubt that Karunasena had shared the intention of the unlawful assembly to harm the detainees. According to the Court’s understanding of the evidence against him, Karunasena was being charged for three different categories of actions which both individually and together were taken to prove that he shared the intention of the unlawful assembly: 1) a general intentional failure to comply with his legal duty to protect the detainees (as evidenced by the failure to take actions to repel the invading crowd and protect the inmates); 2) specific illegal omissions (the failure to arrest any of those responsible for the violence, and the failure to take action when detainees were attacked while in the police truck); and 3) specific illegal acts (shooting at the detainees and the removal of dead bodies with a view to destroying evidence of the crimes).

The Court reasons convincingly that the prosecution’s reliance on circumstantial evidence means that “the inescapable inference from both the positive acts and the omissions taken together must be that the 4th accused-appellant had only the intention to join the unlawful assembly with the common object of causing hurt to the detainees. If the proved facts do not exclude other reasonable inferences then a doubt arises whether the inference sought to be drawn is correct.” In fact, the Court shows, there was enough uncertainty and ambiguity in the evidence presented against Karunasena (and originally nine other police officers as well) to make it impossible to hold that his joining the unlawful assembly was the only reasonable inference that could be drawn from it.

The value of the Court’s decision with respect to Karunasena lies in its undoing the mistake of the Trial-at-Bar, which was to hold Karunasena and Ratnayake responsible for all the failures of the police, without having adequate evidence that they either had the power to prevent the attack or the authority to get the police as a whole to act otherwise. (As mentioned in an earlier section of this essay, the prosecution thus effectively holds the two officers accountable on the basis of command responsible, but without articulating the principle or defending it with evidence).

In fact, however, the heart of the Supreme Court’s judgment goes much further than this: the substance of their detailed analysis of the actions of the police holds not only that there is insufficient evidence to prove Karunasena’s involvement in any of the supposed illegal (positive) acts and illegal omissions, but that taken overall the Police can be shown to have done their duty as best they could under difficult circumstances.

In making this claim, the Court overshoots the mark and ends up simply reversing the injustice of the High Court’s judgment: in building a case to acquit Karunasena, they end up denying the obvious and morally catastrophic failure of the police. In order to acquit Karunasena, the Court ends up acquitting the police as a whole, thus repeating the High Court’s mistake of failing to separate Karunasena from the rest of the police. Where the prosecution and the High Court held Karunasena and Ratnayake legally accountable for all the various illegal omissions of the police, the Court instead finds that since Karunasena and some of the other officers on the scene took some useful actions it is therefore wrong to say that the police failed at all.

This flattering picture of the police, however, comes at a cost. It is convincing only if one is disposed to downplay much of the evidence against the police while giving undue weight to those pieces of evidence that seem to place the police in a positive light.

1. For instance, the Supreme Court panel gives great weight to a number of small positive acts taken by some of the police so as to make it seem to prove that Karunasena and/or the whole police were doing their duty. The Court in this way makes much of the evidence that the police did in fact shoot in the air in an attempt to disperse the mob as it first stormed in – though the number of spent cartridges found at the scene suggests not many shots were fired. The Court also praises the fact that some police drove away some villagers as they attempted to enter the camp, that some police ultimately assisted some of the detainees, and that the injured who survived the attack were eventually sent to hospital. These hardly seem anywhere on the same order as the colossal failure of the police to protect the inmates in the first place.

2. The Court also presents evidence that is quite ambiguous in its meaning as if it clearly supported the good intentions of the police. For instance, the Court claims that despite his initial claim that he and others were deliberately shot at by the police the surviving detainee Ganeshamurthy Ashokan ultimately admits that the police had done so accidentally while firing to disperse the crowd chasing the detainees. However, when one reads Ashokan’s testimony closely, it is unclear what one is to make of this “admission,” given that it comes as an abrupt and unexplained statement after much repeated and confusing cross-examination – which took place, it is worth remembering in a language that Ashokan didn’t understand and in a court room guarded by Sinhalese police and composed predominantly of Sinhalese spectators.

3. Even more questionable is the Court’s characterization of the survivor Kandasamy Chandrasekeran’s statement that the police had told the detainees to remain in their billets at the initial stage of the attack. The Court presents this as if it contradicted Chandrasekeran’s claim that the police had not done anything to save them. That the police had told the detainees to remain in the very place where most ended up being attacked and killed, and then failed to protect all but a few of them – this is hard to accept as convincing evidence in their defence. Likewise with the Court’s treatment of what they consider to be positive acts done by the police to prevent the attack. Karunasena’s decision to post more than half of his 65 officers far from the eventual scene of the attack and his failure to have them redeployed in time to control or lessen the violence, or at least to arrest some of the attackers, hardly seems like the best way of preventing the attack. Similary, Karunasena’s order to his men not to shoot unnecessarily remains far more ambiguous than the Court allows, as the failure of the police to shoot or take any other strong actions against the attackers seems on one interpretation to be at the heart of the police negligence.

4. While the Court at crucial moments seems to show great deference to the testimony of the police, and to Sinhala witnesses for the defence (we have already seen one example of this in the Court’s unquestioning use of Padmananda’s testimony), it seems especially dismissive of the testimony of the detainees. On the one hand, then, in responding the High Court’s charge that the police decision to remove the bodies of the murdered detainees was an attempt to conceal evidence, the Supreme Court simply refers to the testimony of ASP Dayaratne that this had been done in order not to provoke unhappiness among the Upcountry Tamils in the surrounding communities – and leaves it at that. (While the ASP’s testimony helps clear Karunasena of responsibility for this particular action, it is no way establishes the correctness of the action itself.) The eyewitness testimony of the surviving detainees, on the other hand, doesn’t seem to have quite the same status. The Court chooses to reject the testimony of two survivors – accepted as true by the Commission of Inquiry – that they were each attacked by the mob while they were inside a police vehicle within sight of numerous police officers. The Court argues instead that their stories are contradicted by a sole Sinhala witness who “claimed that when a detainee who came running towards the Police truck near the turn off to the camp was attacked, there were no police officers at that point.” It is worth pointing out, of course, that even if this witness is to be believed, his testimony doesn’t necessarily contradict the survivors’ claims, as it is not clear that they are all speaking of events that took place at the same time. Finally, the Court also dismisses the claims of the survivor Perumal Easwaran that his two fingers were blown off by a gunshot wound when the police shot towards a group of inmates fleeing attackers. While they cite the evidence of a Judicial Medical Officer that “clearly showed” his wounds were caused by sharp weapons, they make no mention that an earlier JMO report, submitted as part of the prosecution’s case, referred to Easwaran being sent to Badulla hospital after the attack for treatment of “gunshot wounds.” (The Commission of Inquiry held that at least three inmates were shot by the police.)

5. The neglect of this last piece of evidence is not the only time that the Court chooses not to mention evidence that incriminates the police. When considering the question of the police failure to arrest any of the attackers, the Court makes no mention of the photographs, taken by a police photographer who arrive at the camp around 9:30-9:45 am, that clearly show senior police officers – who seem to include Karunasena and Ratnayake – milling around the camp alongside armed attackers, as a dead or injured detainee lies at their feet. While these photographs, as mentioned in earlier sections of this essay, were taken after the attack was largely concluded and are not without their questions and ambiguities, they show with stark clarity that the police were comfortably coexisting with armed members of the mob. Also of some importance is the Court’s failure to mention that the autopsy report of the one inmate clearly killed by police firing showed his body had six bullet wounds, which would mean that he was struck by at least three bullets. This hardly seems a typical case of accidental shooting. The Court also fails to engage with an important piece of evidence that the High Court made much of: the fact that the attackers were able to burn the bodies of many inmates beyond recognition suggests that the attack was not over and done with quickly. For the bodies to be burned so completely, the High Court argued, would have required the acquiescence of the police. This is an apparently minor, but nonetheless devastating, detail, especially when considered in the context of the shocking ferocity of the attack as a whole and the particularly gruesome ways in which the inmates were killed – all of which is a far cry from the Court’s initial presentation of the attack as a spontaneous response to the provocative actions of the inmates.

6. Finally, it is worth mentioning a whole series of other questions that the Supreme Court panel failed to ask and issues it chose not to raise. With regard to the failure of the police to arrest any members of the unlawful assembly, the Court makes no mention of the testimony that showed the police and the crowd were mingling together before the attack. Far from keeping the crowd at a clear distance so as better to control it, at least some of the police seem instead to have been part and parcel of the gathering crowd. The Court also never asks why there were so few shots fired “in the air,” or why no bullets were ever found (as we know, at least one was though it eventually “disappeared”) and displays no curiosity about other missing evidence – i.e., why virtually no physical evidence of the attack was ever apparently recovered. (Eyewitness accounts gathered through independent investigations have revealed that in fact the police had gathered a large number of weapons used in the attack, many with remains of the bodies of the murdered inmates stuck to them, but left them out overnight in the rain and eventually destroyed them.)


Beyond the Limits of the Law

As some of these last examples suggest, it is important, if only for the historical record, not to remain entirely within the confines of the case as it was presented to the Supreme Court, but to consider the entirety of the evidence gathered from other sources.

While this evidence wasn’t within the purview of the Supreme Court and thus can’t be used to challenge the validity or procedural fairness of their acquittals, it nonetheless has a bearing on any determination of the ultimate “truth” of their judgment. Foremost among this evidence is the fact, as established by the Presidential Commission of Inquiry and other independent investigations, that ASP Dayaratne and HQI Seneviratne were at the camp either from before the attack began or soon upon its commencement. This clearly renders their testimony at the Trial-at-Bar utterly unreliable. According to the report of the Commission of Inquiry, their credibility was already shattered by various inconsistencies and lies in their testimony to the Commission. Equally important is the disappearance of the bullet found within the one inmate clearly established to have been shot by the police. That such evidence was able to be “disappeared” suggests the deliberate suppression of evidence and should prompt thoughts of what other evidence might have been lost or tampered with. Finally, there are the various bits of evidence, mentioned in earlier sections of this essay, that suggest a significant degree of premeditation.

Even without having access to all this evidence, it was clear to the three members of the Trial-at-Bar that the police had failed miserably and had collectively been involved in a grave injustice. Despite their unjust convictions of Karunasena and Ratnayake – based on the mistake of holding them responsible for actions they weren’t proven to have been able to control – at least the High Court judgment made clear the collective failure of the police.

The great injustice of the Supreme Court decision lies not in its acquittals, but in its re-writing history so as to reduce the criminal and political significance of the massacre and the seriousness of the willful failure by the Police to prevent or mitigate the attack. Rather than simply making the justifiable argument that there is inadequate evidence to hold Karunasena responsible for the clear failures of the police as a whole, the Court choose to deny that the police failed at all. As part of this, it effectively adopts a perspective on the attack that is close to that of the attackers themselves – claiming it was mostly defensive, an understandable reaction to provocative actions of the inmates. Even taking into account the limits of the evidence before them, the Court unnecessarily favored the accused and systematically downplayed the seriousness of the crime.

Political Consequences and Lessons

The moral and political failure in the official state response to the Bindunuwsaewa massacre began, of course, long before the case reached the Supreme Court. It began with the inadequacy of the initial police investigations and was followed by an unnecessarily weak case presented by the Attorney General’s Department.

In addition, however, the basic ambiguity of the judgment, and the widely held feeling that the extreme sentences, and even the verdicts themselves, were unfair, suggests other important lessons. Most important, it should warn us about the political risks involved in demanding human rights prosecutions without having the investigative, judicial, or civil society mechanisms in place to guarantee a full and accurate airing of all available evidence. The strongly negative reaction to the verdicts, especially among police and among Sinhalese in the hill country, is very worrisome. The message many people saw in the verdict, fairly or not, was that average Sinhalese villagers and police are made into scapegoats, while the big guys remain untouched (and the Tigers go on violating the ceasefire at will). Thus the unclear message it sends about impunity – that for political reasons some people must be held accountable, but that, for political reasons of a different sort, those people won’t be the big guys – actually undermines whatever positive message it was hoped to send about ethnic justice. If the Bindunuwewa case proves anything, it is that simply having a trial for trial’s sake is not only inadequate, but can actually be dangerous.

The deep and very genuine ambiguities at the heart of the Bindunuwewa case were captured very nicely in an interview soon after the convictions with a government official familiar with the case. “In my heart, in a way, I’m satisfied,” he said. “Justice has been done.” Arguing that the police could have prevented the attack, but were “lethargic, casual, negligent,” he held that the judgment sent a clear message to the country: “the police hereinafter can’t say they can’t prevent things. They now have a clear duty of prevention.” Unfortunately, with the tearful interviews with the convicted police spread over the front pages and on people’s TV screens, “the whole spirit of the conviction is gone. The general public is now angry – without the intervention of media, people would have been very fair-minded – people have been pushed to be communal-minded by a competitive media.” Indeed, as he says, these popular attitudes could very well register in the minds of the Supreme Court Justices hearing the appeal. “They will try to be fair minded but can’t help but be very aware of public opinion.”

And yet, even as he defended the justice of the decision, the government official went on to say that perhaps an Inspector of Police really can’t be expected to stop such an attack – he would be unlikely to shoot at the crowd without clear instructions from his seniors. Of the HQI’s claim that he had to attend a disciplinary hearing that morning: it was “absurd” that he would think this takes priority over situation at the camp. Thus, “in a way what junior officers say is true.” The Attorney General’s Department “does its job going by the law, but practically speaking there are other factors at work” – i.e., it’s not really clear that the police could have prevented the attack, and or that they took an active part in the killing. Yet the Supreme Court was aware that a reversal on appeal would speak badly of the legal system – thus other political issues would inevitably come into play. The junior officers then were “mere pawns.” Perhaps this official was a little too generous to junior officers like Karunasena and Ratnayake, given what we know about the carnage that went on while they stood and watched – and perhaps fired their guns – with their superiors present, too, of course. There can be no doubt that there was an utter moral and legal failure on the part of the police, both collectively and individually, even if the precise details of who failed how and to what degree will likely remain forever unknown.

Yet the tensions and ambivalence that characterize this official’s analysis of the case suggest the deeper strains of a legal and social system struggling under the burdens of a history filled with violence and impunity.

In this way, the Bindunuwewa case has also revealed in particularly sharp relief the continuing weakness of Sri Lankan and international civil society: mechanisms for sustained and effective follow up in cases like Bindunuwewa still need to be developed. The initial outrage generates calls for independent commissions, full investigations, and trials if justified. Yet there were no organized efforts by the media, political parties, civil society organizations, or the “international community” to maintain the pressure for full disclosure and to make sure that the case was being handled well, that the right leads were investigated, the proper people indicted, the full evidence
presented, and the victims treated with respect.

Where to from here?

While the procedures of the criminal law have now run their course, there do remain – at least in principle – other avenues for a small degree of justice. Thus there remains a crying need for disciplinary hearings to be held on the conduct of the HQI and the other police officers involved (the ASP has since retired and is thus presumably beyond the reach of such a process). The Commission of Inquiry strongly recommended that disciplinary hearings be held against ASP Dayaratne, HQI Seneviratne, IP Karunasena, SI Ratnayake, SI Jayaratne, SI Walpola, and SI Abeynarayana. It also recommended investigations into the conduct of Captain and Lieutenant Abeyratne. No such investigations or hearings have been held. This situation would seem ripe for at least some degree of public pressure.

A preliminary step would be to call for President Rajapakse to finally publish the Commission report, ideally in Sinhala and Tamil as well, so that all Sri Lankans would have a chance to read it. For despite its serious flaws, it presents presents a more accurate and more critical accounting of the attack than the Supreme Court’s judgment, which must not be allowed to determine the historical meaning of what happened at Bindunuwewa.