University Teachers for Human Rights (Jaffna)

Sri Lanka

UTHR(J)

Special Report No.30

Date of Release: 1st April 2008

 

 

Unfinished Business of the Five Students and ACF Cases

– A Time to call the Bluff

 

Contents

0. Summary

1. A Window to Lighten an Abyss

2. ACF Massacre: The Hard Road to the Truth

3. Piecing together, Painfully

4. The Mutur Police and the Special Forces

5. Friday 4th August – Some Real Evidence at Last

6. The Truth Finally

7. The Killers, Weapons and Dodd’s First Report

8. Did the Police Hierarchy Instigate the ACF Killings?

9. Kodeeswaran – the Link between the ACF and Five Students’ cases

10. Similarities to the Bindunuwewa Massacre

11. Command Responsibility

12. An STF Mafia within the Police

13. Final Pieces of the Puzzle: Events of Friday 4th August Afternoon

14. SSP Kapila Jayasekere and Mutur, 3rd to 5th August 2006

15. Calling the State’s Bluff – Time for Concerted Action

A Note on the Addendum and Witness Protection

Appendix I Armed Muslims in Mutur (File Attached)

Appendix II Trincomalee Where What Seems is Not Quite (File Attached)

Appendix III Mr. Yogarajah’s Testimony Concerning his Sons (File Attached)

Addendum Guns, Bullets and Wounds

Press Release for Special Report No 30 (File Attached)

Map of Mutur

 

0. Summary

On 4th August 2006 17 aid workers were extrajudicially executed in their Action Contre la Faim (ACF) compound in Mutur town. Through blatant cover up by the Sri Lankan authorities, their experts, Attorney General and diplomats overseas the facts of killings have been suppressed along with any potential association between this massacre and the killing of five students on the Trincomalee foreshore on 2nd January 2006.

With the support of individuals equally interested in bringing out the truth and finding justice we have uncovered information that reveals that the 17 aid workers were killed by at least one member of the Muslim Home Guard (Jehangir) and two police constables (Susantha and Nilantha) in the presence of the Sri Lankan Naval Special Forces. Four different types of guns were used. Evidence suggests that the killers had prior approval from ASP (Sarath Mulleriyawa) and OIC (Chandana Senayake) for their vile enterprise. But it is highly unlikely that the ASP and OIC would have taken a reckless approach or that they had any particular reason to want the aid workers killed and they had earlier received orders from Trincomalee to ensure the safety of the aid workers. We believe they may have received an instruction from their superiors in Trincomalee (namely the DIG Rohan Abeywardene and SSP Kapila Jayasekere) that the aid workers should be killed. The commandos must have been informed by their superior to let the killings take place and may be directly responsible for firing the bullets that killed at least one of the aid workers.

SSP Kapila Jayasekere, along with Zawahir (OIC Crime Harbour Police, Trincolmalee), is widely known to have been responsible for planning, orchestrating and covering up the killing of the five students by STF assassins amidst a naval security cordon and hundreds of witnesses, who were part of a captive audience. The intimidation of families and witnesses and the killing of witnesses and a journalist who pursued the case are well documented. This includes the family of Hemachandran, one of the five students killed, in particular Hemachandran’s brother, Kodeeswaran. Kodeeswaran had spoken to a member of the STF killing team, believed to be VAS Perera its head, who answered one of the victims’ mobile telephone just prior to the killing of the five students. Kodeeswaran was then systematically harassed by the security forces until he was killed in the ACF massacre seven months later. We believe that the 17 aid workers would have lived, had disciplinary action been instituted against SSP Jayasekere over the killing of the five students.

The murders of the 17 aid workers and the five students are among thousands who have died by violence during the past 26 months. Perhaps we know more about these 22 tragedies because of contact with some of the families, but the ones we do not know are no less poignant. The stories of thousands of young dying and maimed in the Vanni, having been forced to fight for the LTTE against their will, remain a closed book until perchance a plaintive unsent letter is recovered from a dead cadre.

These two cases, given also the international interest, remain the most promising means of making cracks in the prison of impunity, which grips the nation. In the history of crimes of this nature, even when they lead to investigation and court proceedings, we are left in the dark about the deeper political underpinnings of the crime, instigation at higher levels, the thinking behind and motivations, knowledge of which are key to exposure and deterrence.

The country has learnt to be comfortable with grave crimes going unpunished one after another, with the certainty that even graver ones would follow. The answer to the question why Sri Lanka is steeped in recurrent gross crimes, especially against the minorities, that go unchecked is not far to seek. The rulers without good sense or vision would fight hard against command responsibility being invoked in judicial practice. This would have been relatively harmless if the politicians and security forces were reasonably law abiding. Unfortunately, this country is determined to earn the contempt and ridicule of the rest of the world.

For years the State has gone on denying, obfuscating, abusing detractors, intimidating or killing witnesses and making matters progressively worse. Our envoys like the foreign minister, foreign secretary, minister for human rights, Attorney General and many more have tried to cover the country’s shame with rhetoric – ‘We have our Supreme Court, our judges, our own Police Force, Attorney General, forensic pathologists and ballistic experts. We don’t need foreign help in investigations that are progressing well’.

The ACF case by itself proves this rhetoric to be empty – not because of local incompetence but because of malice. Malice against justice and against the minorities. We use the word malice advisedly because it is an unvarying condition, with no desire for correction.

As for the Police that was directly responsible for the killing of both the Five Students and the ACF staff, it has largely ceased to be a police force. The Police are more involved in perverting the evidence and silencing witnesses than in any real investigation. In a state that has deliberately truncated itself to a Sinhalese State, the Police have been increasingly used as its criminal arm.

The hypocrisy about our state institutions has to stop and the fact has to be faced that there has now been a long history of justice being out of the reach especially of minorities even for sensational crimes that draw world attention.

It is not without great pain that we appeal to the outside world for justice.  It abases us and hurts our pride and often, for unfair reasons, our self-respect. When we had working institutions solving the cases above was routine work. But today the criminality of the very institutions that are meant to deliver justice has thrown huge barriers against justice and the people are helpless.

1. A Window to Lighten an Abyss

The five students were killed by STF assassins amidst a naval security cordon and hundreds of witnesses, who were part of a captive audience. That was on 2nd January 2006, more than two years ago. The ACF killings followed seven months later on 4th August 2006. These make up 22 deaths among thousands who have died by violence during the past 26 months. The stories of thousands of young dying and maimed in the Vanni, having been forced to fight for the LTTE against their will, remain a closed book until perchance a plaintive unsent letter is recovered from a dead cadre.

Perhaps we know more about these 22 tragedies because of contact with some of the families, but the ones we do not know are no less poignant. Each has its unique story. Most of the dead were ordinary boys and girls. Often a tragedy strikes us not in the immediate anguish as in a calm commonplace remark by a mother on a peculiar trait of her son, which signals a void time cannot heal.

Narmathan was one of the ACF victims wearing a bath towel at the time of his death. The time of the incident had long been a point of controversy and it seemed knowledge of the victim’s bathing habits might throw light on it. Narmathan’s mother reflected, “He was always bathing, starting at five in the morning before he set off to give tuition classes. He would bathe at least five times a day.” 

There is however one pressing reason why these 22 deaths remain important. These are from two incidents over which there has been enormous international pressure on the Government to find the culprits and punish them. Notwithstanding public assurances and the appointment of a Commission of Inquiry with a group of eminent persons (IIGEP), the Government of Sri Lanka has remained adamant that nothing of significance should come out. Every independent attempt to bring out the truth has been met with attack and abuse. We have dealt with several instances in our reports and will not repeat them here.

These two cases, given also the international interest, remain thus the most promising means of making cracks in the prison of impunity, which grips the nation. In the history of crimes of this nature, even when they lead to investigation and court proceedings, we are left in the dark about the deeper political underpinnings of the crime, instigation at higher levels, the thinking behind and motivations, knowledge of which are key to exposure and deterrence.

At the core of these crimes in Sri Lanka is the endemic refusal of the rulers to move from criminal responsibility to command responsibility. This means that however grave a crime, a few from the lowest ranks of the security forces are brought to court for carrying out the wishes of their superiors, and inevitably the public feels sorry for them. Thus in the Bindunuwewa massacre (Special Report 19 Part I), the High Court passed death sentences on two junior officers. A superior of ASP rank who was on the scene was not touched and the Supreme Court released those convicted. The country has learnt to be comfortable with grave crimes going unpunished one after another, with the certainty that even graver ones would follow.

For these reasons following up the Five Students and ACF crimes to their root and bringing out the main institutional and political underpinnings is worth every bit of energy we put into the effort. We are certain that it would open windows and throw light on other crimes of this nature. This report is a follow up on our previous reports. Because of a system where the Police are more involved in perverting the evidence and silencing witnesses than in any real investigation, we are often reduced to exposing procedural aberrations and the intimidation of witnesses.

As time passes we move on to another case and do the same thing. As human rights advocates we are reduced to another bunch of entertainers rather than actually help bring out the truth and deter crimes against humanity. We could best try to make some real progress in bringing out the truth, however long and onerous. First, the ACF case.

2. ACF Massacre: The Hard Road to the Truth

Almost everything said on this case by anyone trying to bring out the truth has come under fire. The first was the statement by the SLMM Head Ulf Henricsson of 30th August 2006 blaming the security forces. The ICJ came in to observe magistrate’s proceedings and issued two reports and several statements. In April 2007 the ICJ merely stated the identification by the Australian pathologist Dr. Dodd of a 5.56 mm calibre bullet found in the head of victim Miss. Romila Sivapragasam and what it would very likely imply. And hell broke loose. This was just one among many criticisms the ICJ had made on the conduct of the investigation. In particular it faulted the police investigation of proceeding as though the LTTE were the perpetrators, virtually ruling out any other possibility.

The Attorney General in June 2007 tried to prove what Dr. Dodd called a 5.56 mm bullet was in fact the core of a 7.62 mm bullet. Amazingly, Dr. Dodd went back on his earlier identification on flimsy reasons without even demanding from the Government the missing, certified, original photograph of the bullet, and unjustifiably tried to shift the controversy on to the ICJ, which had in fact relied on Dodd’s original claim. We dealt with this question in ‘A Bullet for a Fig Leaf’, Special Report No. 27. 

Interestingly, the controversy evoked an array of writings locally, from lawyers and even the odd academic, free with their moral indignation against foreigners allegedly trying to exonerate the LTTE. The absence of hard evidence for their arguments was made up with semantics and insinuation. There was the danger that in the absence of any real investigation the case was going to be mired in verbal controversy, and the truth obscured. In the Addendum to this report we provide further strong evidence that backs up Dodd’s original identification of the 5.56 mm bullet.

Indications we received from the beginning were that the SLMM’s identification of the security forces as the likely perpetrators was right, but their estimate of the time as early morning 4th August 2006, which was also the time given officially by the Sri Lankan pathologist Dr. Waidyaratna, was wrong as we had testimony that the victims had been seen until the afternoon. The Sri Lankan pathologist contrary to what he put down in the inquest reports had, we later learnt, told Peter Apps of Reuters that the probable time of death was the 4th afternoon. This the JMO from Anuradhapura told Apps after examining some of the bodies at Trincomalee Hospital on 8th August 2006, well before preparing the post mortem reports. A list of our reports dealing with this case is given at the end.

From what we earlier knew the killings could have taken place any time from 4th Friday afternoon to 5th Saturday morning when the deaths were reported. Very early, in September 2006, we obtained through one of our contacts the testimony of an elderly man from Mutur who lived close to the ACF office that an army patrol went into the ACF office at 4.15 PM. They left after a very short time. At 5 PM masked men in commando uniform came in a cavalcade of motorcycles. A senior officer followed in a vehicle with guards and they entered the ACF office. In about half an hour, he said, they went away.

What confused us was that the source gave us the day as the 5th of August, Saturday, when the town itself was fairly quiet. This source has subsequently been un-contactable. We should have paid more attention to this testimony, but were (Special Report No. 23 of November 2006) misled by strongly held opinion in Trincomalee that the killings took place on the 5th morning. It was later from other testimonies that we realised that people remembered events during the crisis as first day, second day etc and not by the date or day of the week. 

We also mention another testimony we received in February 2007 from a youth known to the ACF staff who was in Mutur two weeks after the incident. A Muslim elder met him in a shop and told him that the ACF was in Mutur helping the Muslims during the crisis by distributing potable water and relief during the siege and also helping with sanitation in camps. He added that some of ‘our boys’ had been involved in the killings. He said that he was on the road when he saw the security forces and some of the Muslim home guards coming from the ACF. Two home guards were mounted on an ACF motorcycle. One of them was Jehangir.

This youth, although giving us genuine information, which matched the earlier testimony, made the kind of mistake we initially made. He had in mind what the SLMM concluded and said it happened on Friday morning. It was after several conversations with this youth that he remembered that the elder had also told him that he had seen this after he had attended prayers at the Mosque, and was subsequently convinced that it happened in the afternoon. His attempts at contacting the man again proved futile.

These two testimonies focused our attention on the Naval Special Forces (which in the first testimony were mistaken for the more familiar STF because of the commando uniform) and Muslim home guards.

Making the initial slip on the time was helpful in that once we realised it, we tried to reconstruct events more carefully with whatever new information we received. It was in respect of the Five Students and ACF cases that for the first time we were up against an outright cover up by the Sri Lankan authorities, their experts, Attorney General and diplomats overseas, and needed to be much more vigilant in pursuit of the truth. Fortunately, on the way we encountered more people who were equally keen and willing to do things that would have been pointless doing if no one was going to bring out the truth. It is to them we owe what we set out below.

3. Piecing together, Painfully

Communications and further Indications of the Time

A circumstance that led the SLMM to decide on the time of the incident as before 7.00 AM on 4th August 2006, was that ACF Mutur was un-contactable by radio or other means from that time. We received reports from Trincomalee that calls were received from Mutur ACF staff on the 4th evening and 5th early morning. But attempts to track them to the reported sources brought negative results. The course of the investigation also showed that the Government was very reluctant to release the phone call records.

On the other hand, other testimonies of direct or indirect contact by Mutur residents earlier in the day appeared to stand. A religious leader in Mutur told us that he had been to the ACF around 8.00 to 8.30 AM in the morning and advised the staff to join them as they were leaving Mutur on foot. The ACF staff refused saying that their superiors had told them to remain in the office to be picked up.

A member of the ACF staff who was not staying at the office and left Mutur on foot with most of the residents, was positive that the staff members were alive when they left about 10.00 AM on the 4th. He had not met them but a lady who cooked had met them after 9.00 AM. This was further supported by a report in the Sunday Virakesari, a Tamil language Sunday newspaper of 13th August 2006: “Finally, the sister next door who fed them also met them and said, “Everyone is packing up and going and you are staying. There will be no point in worrying after something happens.”

The decision by Tamils to pack up and go seems to have been taken on the 4th morning and not before. A refugee at the Methodist Church told us that the LTTE came that morning and told them that they are going to fire mortars at the Jetty naval garrison, and if they are staying they must dig bunkers or they must go. Some started digging bunkers and found the ground too hard and decided that they must all leave. It was then that people began scurrying to make some last minute arrangements.

When we contacted the lady interviewed by Virakesari, she was scared to talk. Muslim friends also told us that Muslims who were leaving had after mosque prayers asked the Muslim ACF employee Jaufer to join them and leave on foot, but he wanted to stay with the others. This may be any time after 11.00 AM, as prayers usually conducted at Friday 1.30 PM may have been held earlier.

About mid-2007, a senior Sister at the Mutur Convent told us that sometime after their exodus from Mutur, she met some Muslims in Trincomalee, who told her that after the LTTE had left, some at the ACF had walked down to a grocery store on the Main Rd. close to the Hospital to buy tea and some eatables. This seemed afternoon on the 4th since the general consensus was that the LTTE vacated the town around noon on that day. Another source told us that two boys from a Tamil family that was staying with Muslims had met Narmathan and some others from the ACF at a shop close to the Hospital late afternoon on the 4th. In neither of these were we able to trace the sources.

A concerned Muslim lady gave us information that supported the general drift. Abdul Hakim, a Muslim militant leader in Mutur, was shot dead by the LTTE on 30th September 2005. After that the militants divided. One group remained armed. The other felt that Jihad is a deeper ethically demanding concept that is much more than carrying arms and became a non-violent religious group. The second group became law abiding citizens and started exposing crimes of the militant section. (See Appendix I)

A member of the second group told this lady that the killings had taken place around 5.30 on Friday 4th evening and some of the Muslim militants had been involved. The informant promised more, but was thereafter unreachable. The lady gathered that people in Mutur were being intimidated to be silent on this.

While sharing an end of the day stimulant, a Muslim man in Mutur told a friend recently that the ACF killings took place on the afternoon of Friday 4th August. He identified Home Guard Farook (No.68069) as one of those involved. Farook was notorious in that before August 2006 the security forces allegedly used him to abduct, torture and kill Tamils coming from the LTTE-controlled area. We also received testimony that he went out with the Special Forces on the 3rd August evening. But we have so far not received information on what he was doing on the 4th. Unlike Jehangir who was garrulous, Farook was quiet.

Another incident that was not taken seriously at that time is significant in retrospect. On Friday 4th afternoon an ACF group went with expatriate officer Elias to collect their colleagues in Mutur. They returned to the ACF office about 7.00 PM. One of those who came back was informed by a friend that the Programme Manager Alabdeen had got a call and he then told Frank Kano that about 15 bodies had been found in a house in Mutur. The others did not take it seriously as rumours were coming in that the ACF staff had left and were seen in various places. It now appears that one of the neighbours of the Mutur ACF had seen the bodies and phoned Alabdeen whom he knew. Alabdeen very likely felt bad and gave a euphemistic version. Our source thinks the call came about 6.00 – 6.30 PM.  

Inconclusive as things were, it appeared almost certain that the killings took place in the afternoon or evening of 4th August. At least whatever the cause of the breakdown of radio communication, it seemed to have to do with mundane causes, such as an inability to run or restart the generator that powered the communications rather than deliberate damage. It is conceivable that the LTTE did visit the ACF office on Friday morning, as they did the Methodist Church, and again advised them to leave. If the ACF staff had told them that their orders were to stay, the LTTE may have got angry and done something to the radio. But there is nothing to support this except a report from some of the ACF staff of a cable linking the radio to the antenna being pulled out. It falls to the courts to ask the ACF for the radio and clear the matter. The inability to find confirmed instances of calls using cell phones was problematic but not crucial. If they were unable to run up their generator and charge the batteries, their cell phones too may have run out of charge.

But one factor is worth mentioning. The Police very early obtained all the cell phone numbers of the victims and details of calls made from the cell phone companies. But to date this evidence has not been made public. Is it because calls were made during the course of the day that conflict with the Government’s version that the victims were killed early in the morning?

4. The Mutur Police and the Special Forces

When the LTTE came into Mutur on the night of 2nd August 2004, the Police left their positions in town and regrouped at Mutur police station. Government artillery shells were falling wildly. Magistrate Ganesharajah and the Magistrate’s police security, which included Sergeants Mahendran and Padmananda, went to the Police Station. The Police warded off the Tigers with small arms and mortars.

One witness (hereafter referred to as W) who remained in the Sinnamattakalappu area near the courts saw in the morning of 2nd August about 40 bloodied sarongs. Many sarongs had on them weapons and ammunition. The LTTE cadres who came were all in sarongs, not in uniform. This witness saw a group of LTTE cadres having a meal and is certain from their accent that they were neither from Batticaloa, Mutur nor Jaffna, but seemed to speak with a Hill Country accent.

The Police Station was under siege. On the 2nd little before noon around half a dozen policemen and home guards went to the Jetty to obtain ammunition and some weapons from the Navy who managed to hold on. The Police were quite well stocked with weapons but lacked ammunition. While these were being brought back in a tractor, an LTTE shell from the direction of Pachchanoor landed close to it, killing, according to a member of the party, a police sergeant and a home guard. The rest abandoned the cargo. Most of the survivors returned to the station. One who went missing returned to Mutur some days later. Nilantha who worked at the armoury was slightly injured, but was able to function and got back to the station.  

At the Police Station itself the men fought valiantly even though the officer in charge was only the Acting OIC, Inspector D.M. Abeywardene. Mutur was one of those stations where the superiors usually kept away in Trincomalee. The policemen felt the absence of more senior officers who could lead and told the IGP when he talked to them. The night of 2nd August was critical with the Police running low on ammunition. About mid night an LTTE shell exploded killing a policeman. Meanwhile Judge Anton Balasingham of the Trincomalee High Court was trying his best to get the Mutur Magistrate out. But the Police in Trincomalee wanted him kept there. It looked to sources close to Judge Balasingham that the Police wanted to keep the Magistrate as a shield. 

Around 11.30 AM on Thursday 3rd, the Police were contemplating abandoning the station and moving to the Jetty where the Navy was. Their superiors at Trincomalee persuaded them to stay until relief arrived. Naval Special Forces Commandos were landed at the Jetty and they came along the coast reaching the Police Station about 1.30 PM the same day, bringing enough ammunition and arms.

A point of importance is that ASP Sarath Mulleriyawa and OIC Chandana Senanayake of the Mutur Police arrived at their station with the commandos. Thereafter the ASP, OIC and the officer in charge of the commando unit, referred to by others present as a major, stayed together at the Police Station.

That afternoon things looked quieter and about 4.30 PM some commandos with home guards who knew the area went towards the Hospital. Although the hospital had suffered shell damage, some displaced persons were there. Those who went checked them and were coming away when an LTTE man who had disguised himself as a Muslim in a prayer cap fired and killed one commando and injured two others. The dead man and the injured were carried to a point on the beach close to the Police Station where a naval vessel docked, quickly loaded and took off. The incident at the Hospital deterred the commandos from venturing into the south and east of the town the same day (3rd). They returned to the Police Station.

On Thursday night the news quoted the Army Commander that Mutur is 80% captured and the LTTE were trapped and cannot escape. The security forces radio at the police station announced at 6.30 AM on Friday 4th morning that they had captured Mutur town and several LTTE bodies were strewn around including 50 to 60 bodies close to the Jetty.

With regard to the ACF killings these claims caused controversy. The Daily News of 4th morning quoted cabinet spokesman Keheliya Rambukwelle claiming (on the 3rd night) that ‘Muttur town is under the total control of the Security Forces’. But the same spokesman after the SLMM statement pointed to the security forces as the party most likely behind the ACF killings, maintained that the crime, committed around the 4th morning according to post mortem reports, was the work of the LTTE.

Another event on Thursday 3rd is of considerable, but also misleading, significance. Jehangir was as mentioned, one of the home guards at the Police Station. Being natives of the place, several of them were moving in and out of the Police Station and bringing intelligence. Jehangir had a brother named Zahir Khan who was in the armed Muslim group. According to a story reaching the Police at that time, a Tamil boy who described himself a member of the Karuna group got friendly with him. Zahir believed him and told him the truth about himself. The boy being really an LTTE cadre pulled out a weapon and shot Zahir dead. Jehangir who heard about this the same day, was seen very angry, swearing revenge.

5. Friday 4th August – Some Real Evidence at Last

On Friday morning the Special Forces went on patrol with some of the home guards. Jehangir was keen to show them the places where the LTTE supposedly were. About 8.30 AM, the officer commanding the Special Forces at the Police Station gave orders to his men on patrol, “Demala kathakaranna kattiya civil ekeng hitiyanang…” (whose purport was, “If you encounter any Tamil speakers (i.e. Muslims or Tamils) in civilian dress, finish them off [if you have any suspicions]”). This order appeared to reflect the shooting dead of a commando by an LTTE cadre wearing a Muslim prayer cap the previous day. The significance of the order for the ACF killings lies in that it made arbitrary killing of civilians permissible.

We mentioned that Jehangir was angry about the LTTE’s killing of Zahir Khan and he was regularly getting information from Muslims who were moving about quite freely on Friday. The fact that most civilians had left Mutur on foot by 10.00 AM and the ACF people were still there was bound to attract attention.

Going back to our witness W, having been cut off from developments to the east of his area, he went out of his home in Sinnamattakalappu and by then the area was deserted. He then walked in the direction of the Roman Catholic and Methodist churches, to see if he could find his wife and children whom he had sent to the Methodist Church, but by then all had left. (They had gone to Kantalai with the Tamils and later phoned him from there.) On the way he met two Muslims on bicycles, who told him that the Army had come into town. He then came across a tea boutique that was open, and the few people who were there offered him food. He had not eaten for some days, and said that he preferred only a cup of tea for a start. He got back around 1.30 PM and it was then that he saw the Army (Special Forces) near the DS’s office west of the Hospital in the direction of the Police Station further west.

The Special Forces, home guards and possibly policemen who accompanied them returned to the Police Station at about 4.00 PM and after a short time went out again and came back by 5.00 PM. Among those who accompanied the Special Forces were the home guards Jehangir, Ramzan, Fahid Rilvan, Sultan Faseeth and Ganguly (nickname).

A witness who saw them on their return opines that it was on this last trip that the ACF killings took place. His reasoning was that Rilvan had told him that he came back on a motorcycle, although this motorcycle was not brought into the Police Station. Rilvan had not talked about the killings. This also matched one of the earliest testimonies we received, that after the incident Jehangir and another were seen leaving the ACF on one motorcycle – one of the two stolen from the ACF, the second presumably later (see Appendix I). The time also fell into place and matched the pathologist’s honest opinion given to Peter Apps – Friday late afternoon.

This also made it certain that the Police and Home Guards knew much more about the killings and that was the place to make further inquiries. Indeed, Jehangir was not the type to remain silent as we learnt.

6. The Truth Finally

Early attempts to get information from sources close to the Police and Home Guards were fruitless. What was clear was that they knew, but were very scared to talk. And so, it was maintained, their superior SSP (Operations) Kapila Jayasekere knew about the killings only when apparently an anonymous caller told Prem working at the Trincomalee ACF office on the 6th and he told the Police resulting in Jayasekere ordering SI Gunawardene to investigate. Contrary to what the Police maintain, a local councillor Ragees from Mutur had informed ACF Trincomalee on the 5th morning and also told the BBC the same day.

After a search by friends, we came across a number of sources with a good knowledge of goings on at the Police Station. Several sources are involved and we will merely describe what happened. A number of persons would speak out if they would not suffer adverse measures from the protectors of the law.

Having gone through over a year of deception by the Police and Attorney General’s Department, a simple policeman with a sense of shame who was then in Mutur confessed, “Ape kattiya thamai marala dhamma. Kaatath kiyanda bahe. Api boruwata thamai satchi dhunna.” Rendering the Sinhalese idiomatically into Sri Lankan English, it reads, “Our chaps only killed and dumped them. It is a shame we can’t tell anyone. For lies only we gave evidence.” Indeed, just before the policemen went before the Commission of Inquiry, a senior officer told them to maintain that they were stuck in the Police Station and did not know what went on outside. 

About 3.00 PM on 4th August it got around the police station that a message had come from a senior officer of the Trincomalee Police that the ACF staff was stranded, to take care of them and send them to Trincomalee safe and sound. Our sources said that the police officers in charge did not act as though this was their intention.

After the Naval Special Forces patrol came back to the Police Station around 4.00 PM there was a sense of relief. They were sure that the LTTE had left Mutur town. Jehangir, who had come to know that the ACF staff had stayed back had been insistent about the ACF being an LTTE base. We believe that anything that Jehangir said in anger was a pretext for others high up who wanted to harm the ACF staff, as all responsible persons knew that it was civilians who were at the ACF office. Jehangir as a home guard had no rank and was lower than a constable. Such persons are at best servitors and scavengers used in dirty work (See Appendix I). In Mutur, Jehangir had been guiding the commandos and had in the meantime become very chummy with them.

The ASP and OIC asked Jehangir, the OIC’s bodyguard Susantha, and another favourite Nilantha, who received a minor injury on the 2nd from LTTE fire in an incident described above, to go with the Special Forces to see if there were any LTTE cadres at the ACF. A party of about two-dozen went including a dozen commandos (Naval Special Forces) and the rest home guards and policemen. On the way Jehangir spoke to men who came on a bicycle who confirmed that the ACF staff was there.

Led by the commandos, Jehangir and the rest of the party including policemen and home guards turned left from the main road past the Hospital, and went to the ACF. The commandos surrounded the place. Those at the ACF were drinking tea and eating biscuits, stuff they had bought a little while ago.

The commandos called the ACF staff and asked them in Sinhalese what they were doing there after everyone else had left. The latter replied that their Trinco office had asked them to remain. Jehangir butted into the conversation and without giving the ACF staff a chance to explain, insisted that the staff were LTTE. Susantha and Nilantha, the two policemen with him said nothing. The commandos remained passive. Jehangir got the staff to kneel, and the victims were fired upon as they begged for mercy. It was all over within five minutes from the time they arrived. Two were killed away from the others, apparently trying to run away and their bodies were found separately.

The main persons who fired at the ACF staff were Home Guard Jehangir, Police Constable Susantha and Police Constable Nilantha. The party got back to the Police Station by 5.00 PM. The word of a mere home guard and servitor of dubious reputation sufficed apparently for the commandos and policemen to commit the atrocity.

Upon their return, there was an air of celebration. Jehangir, Susantha and Nilatha were given a heroes’ welcome by ASP Sarath Mulleriyawa and OIC Chandana Senanayake, who warmly shook hands with them.

This was very strange. The fact of the ACF staff being stuck in Mutur was much talked about in INGO circles. There had been a meeting of INGOs and NGOs at 11.00 AM the same day at the Trincomalee UN office where the matter was taken up. Most importantly, the ASP and OIC in Mutur had been asked to ensure that the ACF were safely conveyed to Trincomalee. 

How does one explain the celebration of murder at the Mutur police station? The way it happened and the far reaching cover up, all go to suggest that it was not the ASP and OIC who took the decision to kill. Despite their receiving instructions from a senior officer to safeguard the ACF staff, someone else more powerful, it seems, gave instructions to use some pretext to kill them. Jehangir and perhaps some other hotheads who wanted revenge may have provided such a pretext. The commandos must have been instructed by their commanding officer to let it happen. We explain later why someone more senior in Trincomalee may have welcomed the pretext provided by Jehangir for the executions.

7. The Killers, Weapons and Dodd’s First Report

We argued in Special Report No.27 ‘A Bullet for a Fig Leaf’ that Dodd’s reasons for going back on his initial identification of a 5.56 mm projectile found in Romila’s body were entirely unacceptable. He changed his mind after the Sri Lankan Government Analyst sent him a purported photograph of the projectile that was not the original – the original we must assume has been destroyed. An elementary difference between a discharged 5.56 mm projectile and the core of a 7.62 mm projectile, which the Government Analyst claimed the object was, is that the former has lands and grooves visible to the naked eye, while a core has a smooth surface.

Further, Dodd said he had relied on three CID men present at the second autopsy to make the identification. Sub Inspector Sanjaya Perera had earlier submitted to court among productions from the scene objects that were cores of bullets with their distinctive grey blackish colouring as opposed to the copper colouring of a bullet. Neither he nor the expert, Dr. Dodd, could have mistaken a core for a discharged projectile.

Our sources said that while the Police were generally issued with T-56 weapons, which fired 7.62 mm bullets, Susantha’s personal weapon was black in colour, the barrel about the size of one’s forearm and fired bullets about the size of revolver bullets, thick and squat, like 9 mm bullets. From this and further information in the Addendum, we conclude that Susantha’s was an 18.5 inches long Uzi submachine gun. Nilantha had an LMG (Light Machine Gun), which fired bullets fed by an ammunition belt. (The bullet types are 9 x 19 mm for the Uzi, 7.62 x 39 mm for T-56 and 5.56 x 45 mm for M-16.) Susantha was a technical buff who did handiwork such as electrical wiring around the station and was a particular favourite of OIC Senanayake whose bodyguard he was. Uzi is a bodyguard’s weapon.

We further found that Susantha PC 59495 knew different kinds of weapons and had with two sergeants manned the 80 mm and 60 mm mortars during the defence of the Police Station. PC Nilantha, the other policeman involved in the killings was also close to the OIC. He assisted the sergeant in charge of the station’s armoury. Their closeness to the OIC is a point of immense significance. They were trusted henchmen.

Susantha and Nilantha killed about six of the ACF victims, while Jehangir killed most of those remaining. Jehangir was also an expert in different weapons and taught policemen their use. A minimum of four types of ammunition were used at the scene. There is no reason for us to trust the Police’s collection of productions. The earliest testimony we quoted above said that the killers soon departed and about half an hour later another group came in a cavalcade in commando type uniform. This suggests that someone higher up was alarmed by the ACF killings, and the group came to pick up traces of incriminating ammunition. The commando officer appears to have wanted to make sure that no 5.56 mm or other novel types of ammunition were left lying around – an indication that such bullets, distinct from the common 7.62 x 39 mm, were fired. We confirm this in the Addendum. The naval commandos were seen having M 16 and FN Minimi guns, both of which fired 5.56 x 45 mm ammunition.

What the foregoing tells us is that the whole question of weapons use in the incident had been distorted by the investigation and does not deserve any credit for professionalism. This also shows that Dr. Dodd, unethically, took what seemed the easy way out by going back on his earlier positive identification of a 5.56 mm projectile, rather than prolong a controversy over a bullet he did not have in hand. He would have done better if he had simply demanded that the Government Analyst give him the original photographs taken and certified at the autopsy.

M-16 and FN Minimi (M 249) weapons, both of which fired both M193 and SS109 type 5.56 x 45 mm bullets, were definitely available at scene of crime. Whether one was used, or not, the commando unit shares the culpability for murder. If one was not used there was really no reason for the Government to get so thoroughly worked up about Dodd’s initial identification of a 5.56 mm bullet in Romila’s head. 

While we postpone further discussion of the question of the bullet in Romila to the Addendum, we mention here that although initially reluctant one of our sources said that Jehangir killed the four women who were in a group. At some point Jehangir changed guns with one of the commandos he was chummy with. With the additional evidence in the Addendum, we may put an end to the controversy. Romila was on available evidence killed by a 5.56 mm bullet.

8. Did the Police Hierarchy Instigate the ACF Killings?

The following points are striking:

1.      Most Mutur civilians had left for Killiveddy and Kantalai on foot by 10.00 AM. By 3.00 PM the ASP and OIC had been told authoritatively the plight of the ACF staff and asked to look into their safety. Meanwhile Jehangir badly wanted revenge for his brother and was campaigning that those at the ACF are Tigers. But the general sense was that the Tigers had all left. That is what reports from the security forces were saying, the Special Forces upon return from patrol had not reported a Tiger presence in town and the Police had their own intelligence. Looking for Tigers at the ACF office at this point sounds bizarre.

2.      Susantha and Nilantha who participated in the killing were very close to the OIC and the question arises if they had been instructed to kill. The ASP and OIC had completely disregarded advice from Trincomalee about the ACF staff around 2.30 to 3.00 PM and sent this patrol with the commandos around 4.00 PM ostensibly to see if there really were Tigers at the ACF.

3.      The commandos were indifferent to the fate of the ACF staff, made no attempt to check if they were LTTE and completely disregarded their obvious civilian character. Jehangir, Nilantha and Susantha simply proceeded to shoot the staff based on Jehangir’s absurd claim that they were Tigers, and Jehangir who had no rank is lower than a constable.

4.      This strongly suggests that the ASP and OIC had in fact strongly hinted to the three that the ACF staff must be killed. They are very unlikely to have taken such a reckless approach unless some powerful superior in Trincomalee had given an instruction to kill rather than protect. The ASP and OIC who were with the commando officer at the Police HQ in Mutur must have obtained his compliance.

We now come to the police set up. The chief police officer in Trincomalee was DIG Rohan Abeywardene. Under him were three SSPs. The two original SSPs were SSP Trincomalee, Nihal Samarakoon, and SSP Kantalai. The third SSP was Kapila Jayasekere, earlier SP Operations and was in July, just before the ACF killings, promoted to SSP Operations. Mutur police station came under SSP Trincomalee who is answerable for what happened there even if he was overridden by the DIG.

Police reports on investigations make no reference to SSP Nihal Samarakoon and the ACF case was from the beginning handled by Kapila Jayasekere and subsequently by the same pair Kapila Jayasekere and Zawahir, OIC Crimes, Harbour Police, who handled the investigation of the 5 Students’ case – we have pointed out in Special Report No.24 that these two played a leading role in the latter crime and the cover up. Was there a connection between the ACF killings and the Five Students’ case?

9. Kodeeswaran – the Link between the ACF and Five Students’ cases

We have noted in our reports the systematic intimidation of witnesses and families in the Five Students’ case. Because of this a great deal of information was lost as witnesses and families were forced to flee and, as we mentioned before, an important witness, Balachandran, was killed. Among the witnesses forced to flee were the family of Yogarajah, which directly links the two cases. Of Yogarajah’s three sons, the youngest, Hemachandran was one of the five students killed on 2nd January 2006 and his eldest Kodeeswaran was one of the ACF employees killed.

Kodeeswaran’s house is about 60 yards from the beach. When the bomb blast was heard at about 7.35 PM on 2nd January 2006, his mother became anxious and told the others that Hemachandran had gone that side. Yogarajah went towards the beach. He got to the junction in front of the Urban Council. He was caught by men in military uniform (whom he takes to be the STF or Police and we know to be STF), gave him a blow on the back and ordered him down. He lay flat, back up, with another 25 or so persons, including women. An STF man who looked crazed pointed a gun, threatening the people, “They are all Tigers, all must be shot.” Some women who were detained screamed. The Navy was nearby, but did not interfere. Soon afterwards, the powerful light that was on the side of the road was switched off, Yogarajah thinks by the STF. Few minutes later, he heard boys shouting, “Aiyo Amma” (Help, Mother). Then he heard gunshots. Ten minutes later the same persons ordered them to get up and go back the way they came.

While the father was at the scene, Kodeeswaran was desperately trying to get through to the cell phone of Hemachandran’s friend Rohan. Twice there was no answer. The third time someone answered and spoke to the caller for three minutes until 7.52 PM. The firing took place shortly afterwards.

The middle brother Baskaran said that Kodeeswaran never fully disclosed the import of the conversation, but from hints dropped, he believes the speaker at the other end was VAS Perera, the head of the STF team, and he had got Kodeeswaran’s address and personal details.

Before inquest proceedings began in the Trincomalee District Court on 10th January, two men came home in civils about midday and threatened the family not to testify. The next day some persons came home and shouted ‘Ado’ (a rude threatening way of addressing people in Sinhalese). 

Ten or twelve days after the beach incident, auto rickshaw driver Balachandran came home around 10.00AM and spoke to them from the gate. Balachandran knew the Yogarajahs from their former residence at Railway Approach Avenue near where he lived (Madaththady). He said that Driver Hemachandran (alias Aathavan) drove the green auto rickshaw from which the bomb was first thrown at the students (Special Report No.24). Further inquiries by victim families brought the information that the two persons seated at the back of the auto rickshaw who threw the bomb at the students were a son of Weerakody and a Sinhalese vegetable seller whose son with an unruly record was killed a little earlier, probably by the LTTE. Weerakody Senior had been killed by the LTTE nine days before the students were killed. 

Yogarajah reflected that the auto rickshaw driver Hemachandran knew his son of the same name as they all lived in the same neighbourhood earlier and the former used to come occasionally seeking his son. Yogarajah knew that Driver Hemachandran was a thug and enjoyed close ties with and protection from the Police. He warned his son not to consort with him as that might have repercussions from the LTTE. 

Balachandran left after telling the Yogarajahs not to tell anyone about this, as it would place him in danger. He was reluctant to come there afterwards. Baskaran thinks what Balachandran told them was heard by the policemen at the checkpoint for the Prison and Old Police Station barely a few feet away. The policemen were usually behind cover. Balachandran was abducted from his home on 24th August 2006 and killed. Weerakody’s son in the Navy, Udawatte, reportedly supervised the killing.

The families on 2nd February 2006 observed the 31st day at the same beach where the incident took place. At that time SP Kapila Jayasekere passed them while driving from the direction of the courts towards Fort Frederick. A little later six or seven policemen, two of them in civils, came from the direction where Kapila Jayasekere went. They approached Kodeeswaran and asked threateningly, “What are you doing?” Kodeeswaran was the sort who gets quickly worked up and talks back strongly. A Tamil police sergeant who knew him observed, “He was the sort who reacts quickly, but is scared within.”

Just about that time a letter came home warning the Yogarajahs that they must all leave the country or everyone of them would be shot dead. 

Kodeeswaran was going about on the motorcycle that Hemachandran used to ride. One day the Police stopped him late evening on Green Rd. while he was returning home. An officer, whom Baskaran thinks may have been Kapila Jayasekere, looked at the number and asked Kodeeswaran, “Are you keeping well?” Baskaran said that even stopping someone on Green Rd. was unusual

On another occasion Kodeeswaran was returning home from the ACF office pushing his motorbike with a deflated tyre towards the petrol shed in front of the Buddhist temple to inflate it, when an army vehicle stopped in front of the temple. Seven or eight soldiers came towards him and questioned him for a long time holding him up. Kodeeswaran later told his father that he realised that they held him up to abduct him, but he somehow made his escape.

After the killing of the five students, Trincomalee folk who often find out what is going on within the security forces, formed a strong conclusion that Inspector Zawahir, Deputy OIC of the Harbour Police had connived with Kapila Jayasekere to stage the Five Students’ tragedy. It happened on a day when the OIC for that area was on leave and Zawahir was acting.

Baskaran reflected that Kodeeswaran used to get very angry when he saw Inspector Zawahir passing in his vehicle. He used to remark, “I feel like throwing a bomb at him.” Also remarkably, after the ACF incident where Kodeeswaran was killed, one policeman was placed on duty opposite their house to check visitors. All these factors indicate that Yogarajah’s family was being closely watched. It is not just the original killing of the five students, but also the killing later in January of reporter S.S. Rajan who provided media publicity for the killings and funerals, the continuous intimidation of those who might move the case forward and the killing of Balachandran, are all manifestations of the ruthlessness with which the Police in particular was determined to suppress the evidence.

In the light of this the Police and especially SP Kapila Jayasekere and his superior DIG Abeywardene would have felt nervous about Kodeeswaran. Having gone to the lengths they did in crime, their careers were threatened by exposure in court. Kodeeswaran’s ACF colleagues knew he was under threat. One told us that he avoided going out of Trincomalee town, and should never have been sent to Mutur under these uncertain conditions.

When persons wanting to harm Kodeeswaran found that he remained exposed in Mutur due to bad instructions from the ACF, and there was on the other hand Jehangir crazy about revenge campaigning that the ACF office was a Tiger stronghold, what happened is not surprising. The planned massacre of the five innocent students was an eloquent statement of government thinking on active young Tamils. The stranded youths at the ACF were an opportunity not to be lost. The Yogarajahs were aware of the danger and blame the ACF for not listening to other NGOs and to the parents and allowing this to happen.

One could not have expected anything from the police investigation under SSP Kapila Jayasekere other than to suppress evidence of the State’s culpability. Inspector Zawahir who was unfavourably identified with Kapila Jayasekere in the Five Students’ case visited an elder whom we believe was one whose testimony we cited above. According to Zawahir he left home on 3rd August because of LTTE terror and got back just the day, 9th, when Zawahir interviewed him. This elder Haji Abdul Rahuman has been missing from late September 2006.

Zawahir’s bullying of witnesses was also in evidence in the Five Students’ case. The Police first wanted the parents to certify that their sons were LTTE cadres before releasing the bodies. He told Dr. Manoharan, the parent of Ragihar, one of the Five Students, at Trincomalee Hospital at 7.00 AM on the morning after the killings, “My son learnt table tennis from your son. I will release your son’s body, but why do you want to interest yourself in the others?” A number of features of the ACF case places it a potential fiasco like the Bindunuwewa case. 

10. Similarities to the Bindunuwewa Massacre

Inmates of the Bindunuwewa Rehabilitation Centre, all young Tamils, were attacked on the morning of 25th October 2000 by a mob of an estimated 2000 comprising villagers and outside elements ferried in, while the Police stood by, abetted and participated in the outrage. 27 youths from the Centre were killed and 14 injured. The youths were either LTTE surrendees or persons picked up on suspicion, none of whom had been charged with any offence.

The Trial-at-Bar comprising High Court Judges, Sarath Ambepitya, Eric Basanayake and Upali Abeyaratne delivered death sentences on five of the accused in July 2003. Two of the defendants were police Inspector Senaka Jayampathy Karunasena and Sub-Inspector Tyronne Roger Ratnayake. By 27th May 2005 the five-member bench of the Supreme Court comprising Justices T.B. Weerasuriya, Nihal Jayasinghe, N.K. Udalagama, N.E. Dissanayake and Raja Fernando had acquitted all five on appeal. The bench led by T.B. Weerasuriya ruled that the Attorney General failed to prove the charges without reasonable doubt. We discussed this in Special Report No.19 Part I of 12th June 2005.

For many observers justice was parodied even at the High Court level by prosecuting relatively junior officers acting under orders from their superiors, when in fact these superiors – ASP Dayaratne and HQI Jayampathy Seneviratne – were also present at the scene of crime. B.M. Premaratne, SSP of the region too is answerable under command responsibility. Especially also because he gave the media a biased and twisted account that the Tamil youths had broken into the store of the Centre, armed themselves with implements for attack and provoked the villagers by displaying their genitals and throwing stones.

In our report we furnished strong reasons why Uva Province Chief Minister not only knew about the massacre beforehand but also was among the instigators.

Against this build up involving the high and mighty, legal proceedings trying to pin the blame on an Inspector and Sub Inspector made a mockery of justice. The Supreme Court thankfully put the finishing touches and brought the farce to a close.

The answer to the question why Sri Lanka is steeped in recurrent gross crimes, especially against the minorities, that go unchecked is not far to seek. The rulers without good sense or vision would fight hard against command responsibility being invoked in judicial practice. This would have been relatively harmless if the politicians and security forces were reasonably law abiding. Unfortunately, this country is determined to earn the contempt and ridicule of the rest of the world.

Where the ACF and Five Students’ cases resemble the Bindunuwewa case lies in that all occasioned intense lobbying, propaganda and perversions of the legal process aimed at obscuring the truth. If more evidence turns up against obstruction by the State, we could see who would be sacrificed if, as is now the norm in Sri Lanka, the prosecution works towards criminal responsibility. It may just be VAS Perera and one or two of his men in the Five Students’ case.

In the ACF case, it would be confined to PCs Susantha and Nilantha and Home Guard Jehangir. The ASP and OIC would maintain that they only asked these subordinates to go and see if there were Tigers at the ACF. They would deny instigation to kill. There is no police force here with the independence and integrity to question all who were there individually and build up a case against senior officers.

11. Command Responsibility

Command responsibility is no secret in the Five Students’ case. The Human Rights Commission’s Special Rapporteur and many locals, besides us, have identified SP (now SSP) Kapila Jayasekere as the executor of the plot. Defence Advisor H.M.G.B. Kotakadeniya sent the STF team with, according to him, the Defence Secretary’s consent. Insufficient attention has been paid to DIG Rohan Abeywardene under whom Kapila Jayasekere was acting. We have since learnt that the same night the students were killed, there was a late night meeting at the DIG’s office to plan the cover up. Thereafter intimidation of witnesses with a strong Sinhalese hegemonic flavour proceeded shamelessly without any check. Both DIG Abeywardene and SP Jayasekere had an STF background.

Apart from the Five Students’ case, Rohan Abeywardene was the presiding DIG during the organised communal violence of 12th April 2006, when the Police were asked to keep off and all telephones of senior officers did not answer. This was followed by the ACF incident, also under DIG Abeywardene, remarkable so far for the high level cover up which we have documented. Lakshman Seneviratne MP said in Parliament on 6th June 2007:

Robberies, murders and extortions are going on unchecked in Colombo today.  For the last several weeks we attempted to find the persons involved in the incidents.  DIG Rohan Abeywardene who was in charge of the Eastern Province is today DIG Colombo. He is a close confidante of Defence Secretary Gotabhaya Rajapaksa. I categorically state that they are responsible for what is going on in Colombo today.” (The Nation 10 Jun.07.) The DIG naturally denied the charge. Those who know his record in Trincomalee would find the MP’s charge hard to dismiss (see also Appendix I). DIG Colombo, invariably a political appointment, to which Abeywardene succeeded, was at a time the State was at its criminal worst.

There were a number of alerts about the ACF staff stranded in Mutur and unless command responsibility is called into force, the ASP and OIC in Mutur at the time are not going to say what instructions they received from their superiors in Trincomalee. They all knew there were unarmed civilians at the ACF office. The ASP and OIC sending two trusted subordinates with Jehangir and the commandos to look for Tigers in the ACF office, who then took it into their head to shoot the staff, is not going to wash. The commandos who went with them have not, so far as we know, been questioned. What instructions they had is crucial to assigning degrees of culpability.

Also of importance is the tracing of alerts to the security forces by the various INGOs and NGOs on the ACF staff stranded in Mutur on Friday 4th August and what was done with these alerts. A major cited below was aware and ‘working on it’. What did he mean? A meeting of INGOs and NGOs was held at the Trinco UN office at 11.00 AM to discuss the stranded staff, before an ACF team set off at 1.00 PM to try to bring them back. It would be very, very unusual if after the discussion the departure of another rescue mission were undertaken without at least telephone consultations with the security forces commands in Trincomalee.

In Special Report No.25 we cited ACF sources: “On the 4th afternoon Frank Kano of ACF/ Trincomalee spoke to an army major from its civil affairs office. The Major responded that he was aware of the problem and is working on it and would get back if he had any information. On the same afternoon, Frank Kano went to the office of Nihal Samarakoon, SSP Trincomalee, to hand over a list of their staff in Mutur. Although the SSP was not in, the list was handed over to an assistant who promised to pass it on.”

The foregoing is crucial to disentangling what happened, along with the fact that by 3.00 PM a message had been sent to the Mutur Police to look after the safety of the ACF staff. Was it SSP Nihal Samarakoon who sent that message? Was Samarakoon really out of office when the ACF arrived or was he avoiding the issue knowing something untoward was taking place? Samarakoon has not been an effective officer, nor was he known to be a dirty man. Before answering these questions we must say a word about the extraordinary impunity brought into the Police Force by the constant interchange of personnel between the Police and the STF.

12. An STF Mafia within the Police

The STF, which was formed as a paramilitary force in counterinsurgency by selecting persons from the Police, was the initiative of President Jayewardene’s son Ravi in 1984. From the time it was deployed in the East in early 1985 it quickly earned notoriety as ruthless and lawless, beginning with the Thambattai massacre to the Kokkadichcholai massacre in 1987, the scores of headless bodies in 1990, victims strangled at the STF HQ in lakes in 1995 and the Pottuvil massacre in 2006. Observers who are careful with their language, readily called the STF ‘racist’. After finishing a tour in the STF, men went back to the Police supposedly to enforce the law. In referring to colleagues who served in the STF, policemen would often grimace and say, “They are that type”.

In Trincomalee during 2006, the balance was tilted heavily towards the STF types. DIG Rohan Abeywardene and SP (later SSP) Operations Kapila Jayasekere were from the STF. Even so, when a government wants the STF as an institution to play a different role, it has the command structure where it could function credibly. Unfortunately, the present Government’s outlook dominated by Gotabhaya Rajapakse and Defence Advisor Kotakadeniya is geared towards tapping the worst traditions of the STF.

An STF team brought into Trincomalee and taking instructions from ex-STF men Rohan Abeywardene and Kapila Jayasekere accomplished the exhibition killing of the five students on 2nd January 2006. The intimidation and racist threats against witnesses came from the same quarter. Appointing Maj. Gen. T.T.R. de Silva Rtd. to the civil office of Government Agent Trincomalee augmented the repressive approach. The ex-STF men among the Police in Trincomalee District acted as a mafia and decent policemen were helpless.

From the very top persons who did things policemen should never do were encouraged and protected. Ex-STF men exercised their influence in advancing this culture of impunity. Kithsiri was an ex-STF man in the Mutur Police during 2006. One of his specialities was to organise Muslim home guards to commit atrocities under the protection of the security forces.

Kithsiri was behind the incident on 10th June 2006, where a Muslim gunman boarded the bus in Mutur town and shot dead two passengers including the 12-year-old-boy Sajeevan. The boy’s sitthi (mother’s younger sister) who was a witness was taken away by Kithsiri and threatened not to give evidence. But she was very angry and gave the evidence.

Sub Inspector Athula was a good officer who did his duty in apprehending armed Muslim elements extorting money from a Saudi NGO. He was transferred out on orders from DIG Abeywardene. According to police sources in Mutur, it was Kithsiri who was behind the DIG making the transfer.

Rohan Abeywardene and Kapila Jayasekere, must be held responsible for the encouragement to criminality throughout the District. Soon after the Mutur exodus on 4th August 2006, Muslim criminal elements protected by the Police in Mutur continued their depredations among the displaced in Katalai under the very noses of the Police (see Appendix I). Kantalai is a different SSP’s division from Mutur. This could not have happened unless DIG Abeywardene wanted it that way.

Inspector D.M. Abeywardene who was OIC Crimes at Mutur was considered a good officer. He was helpless. He used to complain to friends that elements having the approval of powerful persons were bringing the Police to disrepute, thwarting his efforts to keep order. He said that the way things were he was going to get transferred.

It was Inspector Abeywardene who was in charge of the successful defence of the Mutur police station in the face of the LTTE attack. It is surely galling for him that his bravery and achievement in leadership have been tarnished by the ASP and OIC who took charge everything was over. They went above him to impose the cowardly and abominable crime of the ACF massacre on the Mutur Police. To add insult to injury, he was forced to assist in the cover up. This backdrop places the crime in perspective.

13. Final Pieces of the Puzzle: Events of Friday 4th August Afternoon

How does one explain the two seemingly incongruous events on 4th August: One, the radio message from the Trincomalee Police to protect the ACF staff stranded in Mutur and send them to Trincomalee at 2.30 to 3.00 PM and the ASP’s and OIC’s order around 4.00 PM to go and see if there were Tigers at the ACF office?

The answer is that information about the stranded ACF staff was coming through two different channels – one benign, and the other potentially sinister. It is safe to say that the ACF staff in Mutur did not become a major issue until Friday afternoon. Everyone was too preoccupied with their own problems. In Mutur itself the fact that the ACF staff had not left with the others would have caused some surprise. By then the LTTE was outside town or on the fringes and people were moving about.

Their presence would have reached the Mutur police station through the Muslim home guards who were moving in and out and possibly through other police informants. It was an unusual development and would have been communicated to their superiors in Trincomalee in their regular briefs about the ground situation. The emergency was not over. A plan to bring journalists to Mutur on Friday was postponed to the next day.

The second channel was the ACF itself. They had asked the staff to stay in the office and had planned to fetch them. We have confirmed that after the morning’s meeting in the Trincomalee UN office, one group with expatriate officer Elias went towards Mutur with the intention of fetching them. Another group with expatriate officer Frank Kano, Alabdeen and Anthony Romulet Perera set about the task of obtaining help from the security forces.

We verified that this group made telephone contact with SSP Nihal Samarakoon early in the afternoon and told him about the plight of their colleagues. They also made an appointment to meet him and give him the details of those in Mutur. We could be quite certain that this was the cause of the police message to Mutur police station asking them to take care of those stranded. Samarakoon was the SSP in charge of Mutur.

This message was of a general public character. Inspector D.M. Abeywardene was in charge of the radio and the message was heard by several people and got around the police station quickly. Inspector Abeywardene would routinely have communicated this to the ASP and the OIC. There were other radio messages directed to individual officers. In such an event Inspector Abeywardene sent for the person, usually the OIC. The OIC then went into a room alone leaving his bodyguard outside to answer the call in private.

We also learnt from police sources that the officers communicating with and giving instructions to the Police in Mutur were usually one of SSP Operations Kapila Jayasekere and ASP Saman Ratnayake. Inspector Keerthi Ranaweera, OIC Administration, Mutur, was also then in Trincomalee, and was among those who spoke on the radio.

As often happens, someone who did the right thing places a crime in context, which would otherwise have been a blank. Such is the nature of the publicly known radio message from Trincomalee enjoining the protection of the ACF staff. It should normally have deterred anyone intending to cause them harm, but for the arrogant impunity encouraged by this government among sections of the security forces.

The foregoing strongly suggests that the decision to kill the ACF staff was based on local information and exchanges with certain superiors in Trincomalee. The radio message enjoining protection was a nuisance that was bound to raise questions among many of those present, but was ignored. If not for that message it would have been easier to cover up the crime. We reliably understand that one of the earlier efforts at a cover up was to write off the crime as LTTE cadres killed by Muslim home guards.

Several factors point to the crime being a deliberate act in the full knowledge that the victims were humanitarian workers.

It was widely felt among the constabulary in Mutur that Home Guard Jehangir was intent on killing Tamils on that Friday.  His homicidal disposition on that day featured in discussions among policemen. For the ASP and OIC to send Jehangir with two of their henchmen and the Special Forces to go and see if there were LTTE at the ACF is none other than an instigation to kill. Jehangir was already railing that the LTTE were there.

The ASP and OIC would not have made such a fatal move by themselves without instruction and cover provided by DIG Trincomalee. Kapila Jayasekere may have been a super SSP who could ignore Nihal Samarakoon, his senior, but an ASP tasked with murder would have wanted further guarantee.

There were no exigencies of war, which might have allowed the explanation of the incident as a mishap. There was no fighting in the vicinity at that time. No one challenged the party that went to the ACF office at any point. The victims were clearly unarmed and were well known in Mutur as humanitarian workers.

It could not have been lost on the ASP and OIC that the ACF premises as those of an international humanitarian agency enjoyed quasi-diplomatic status. Nor could they complain of an exigency or difficulties of communication, which prevented them from communicating with superiors in Trincomalee.

There was radio communication with facilities to speak confidentially. No less importantly, there was ready cell phone access. A cell phone would have been part of a senior officer’s equipment. Although the Dialog cell tower in Mutur was down, there was ready access to the Trincomalee signal from the Police Station, which is close to the sea and across Cottiar Bay. Many of those at the Police Station were calling their friends and families on Friday. There can be no doubt that the killing party was sent to the ACF after full consultation with superiors in Trincomalee.

When the ACF party in Trincomalee went to meet SSP Samarakoon sometime around 4.00 PM in keeping with an appointment already made, he was unavailable. This too is strange. It is likely Samarakoon knew that something unpleasant was going on. 

Most such crimes are accompanied by curiosities that seem unimportant at first glance, but speak loudly on further reflection. Around midnight on the second a policeman was killed by LTTE shelling. His body was to be transferred to Trincomalee by sea the following day, 3rd, where the post mortem was to be done. The Trincomalee Magistrate wanted an order from the Mutur Magistrate. Since the latter was at the Police Station, the Police got him to view the body and make the order, which he did.

Early on the 5th morning, local councillor Ragees saw the ACF bodies in the compound and informed ACF Trincomalee about 9.00 AM. The Police certainly knew that the talk was getting around. The Mutur Magistrate was still at the Police Station, but the Police did not ask him to make the order for the post mortem, nor did they protect the site. The tragedy was withheld from the Magistrate who left Mutur later in the morning. We have pointed out that ASP and OIC Mutur would not by themselves have taken the decision to order or instigate the killing of the ACF staff. Who was it in Trincomalee that encouraged them to kill? The following information we received to our inquiries brings us very close to the answer.

14. SSP Kapila Jayasekere and Mutur, 3rd to 5th August 2006

We have already said that SSP Jayasekere was in close radio contact with Mutur and what we give below suggests that he was given virtually a ball-by-ball briefing and consulted minutely on every development.

On the 3rd when the Police in Mutur contemplated evacuation Jayasekere asked them to hold on saying the Naval Special Forces were coming to relieve them. There was then a move to evacuate the body of the slain policeman with some relatives along with the Magistrate. According to police sources Jayasekere and Inspector Ranaweera told them to keep the Magistrate until they arrived and that they would come soon. The body went, but the Magistrate was kept behind.

The strange developments surrounding the killing of the ACF staff has been described and also the celebration and congratulations from the ASP and OIC that followed. This was 4.00 to 5.00 PM on the 4th.

SSP Jayasekere and Inspector Ranaweera arrived at the Mutur police station about midnight on 4th August, hours after the ACF massacre. Jayasekere slept in what was a sort of reception room. In the morning the SSP was with the officer in charge of the commando unit, thought by those present to hold the rank of a major. The ACF bodies had been seen early in the morning and the Police certainly knew that the talk was getting around. Yet Jayasekere who had held the Magistrate back in Mutur did not breathe a word to him about the work he had in hand. The bodies lay in the sun and rotted. According to official police records, Jayasekere was told about the killings by ACF Trincomalee on the 6th upon which, the DIG presumably, appointed Jayasekere to investigate the crime, bypassing SSP Nihal Samarakoon.

DIG Rohan Abeywardene must explain how he appointed or at least allowed Kapila Jayasekere to be in charge of the investigation of both the Five Students’ and ACF cases, where Jayasekere was himself the chief object of investigation. The similarity of the crimes too could hardly escape notice. In both instances young, unarmed Tamils were surrounded and executed after any prospect of escape was blocked.  

Jayasekere and DIG Abeywardene need to be investigated very thoroughly in respect of both the cases. These two officers along with SSP Nihal Samarakoon are liable in virtue of command responsibility. Samarakoon needs to explain himself. Even if he was just conning along with some nasty officers, he is as liable. Why did he miss the appointment to see the ACF representatives on Friday 4th August 2006 afternoon? Did a superior ask him to take a break?

Further issues on both the cases and some testimony will be dealt with in the Appendices and the Addendum.

15. Calling the State’s Bluff – Time for Concerted Action

One thing is certain about the ACF killings. They would not have happened if minimally, timely disciplinary action had been taken against SP Kapila Jayasekere once his role in the Five Students outrage became widely known. Instead he was promoted to SSP in July 2006. The ACF killings followed just after – a celebration observed by the Mutur ASP and OIC with handshakes. Jayasekere may not have spelt out the order for the ACF killings, but in his presence the air in the Police Force was reeking with impunity – anyone could do anything. Both killings flowed from the same compulsion to kill young Tamils. 

That brings us to the State. For two years it has gone on denying, obfuscating, abusing detractors, intimidating or killing witnesses and making matters progressively worse. Our envoys like the foreign minister, foreign secretary, minister for human rights, attorney general and many more have tried to cover the country’s shame with rhetoric – ‘We have our Supreme Court, our judges, our own Police Force, Attorney General, forensic pathologists and ballistic experts. We don’t need foreign help in investigations that are progressing well’.

The ACF case by itself proves this rhetoric to be empty – not because of local incompetence but because of malice. Malice against justice and against the minorities. We use the word malice advisedly because it is an unvarying condition, with no desire for correction.

Take the Chief Justice’s role as ex-officio chairman of the Judicial Service Commission. He had the ACF case transmitted to the Anuradhapura Magistrate after the Mutur Magistrate had issued orders in the exercise his investigative function (Special Reports 25 and 27). The public senses the true intention of such meddling. For one, it scares off witnesses. An important witness Haji Abdul Rahuman, who was earlier down to testify, is now missing. A bold local magistrate who is strict with the Police can do a great deal for justice and this instance, the case was moved out of the locality. There are at least two more important instances of the JSC removing magistrates from cases to cover up for the security forces (Special Report No. 25 and Appendix III of Special Report No.29)

The Attorney General’s Department that has led the evidence at the Commission of Inquiry purposefully relied on the distorted evidence and accounts provided by the Police. It has not helped in making any honest breakthrough, in contrast with the alacrity with which it set out to quash Dodd’s identification of a 5.56 mm projectile.

We must also question the bona fides of JMO Anuradhapura who was mysteriously imposed as pathologist for this case. We now know that the time he put down in the inquest reports, Most likely in the early morning of 04 August 2006’ was very misleading. He must also explain the missing original photograph of the ‘5.56 mm’ bullet found in Romila at the second autopsy that has remained a subject of controversy. Now that we know that Uzi submachine gun and other bullets had also been used that did not turn up in the investigation, we must ask if the Anuradhapura JMO removed any evidence during the first post mortem. 

Further, the fact that only one type (7.62 mm) turned up in the investigation, whereas the fact that at least three different types of bullets were used, along with controversy about the type of bullet found in Romila, questions the integrity of the process of collection, preservation and transmission of evidence and ballistic analysis.

As for the Police that was directly responsible for the killing of both the Five Students and the ACF staff, it has largely ceased to be a police force. In a state that has deliberately truncated itself to a Sinhalese State, the Police have been increasingly used as its criminal arm.

The hypocrisy about our state institutions has to stop and the fact has to be faced that there has been a long history of justice being out of reach especially for the minorities, even in respect of sensational crimes that draw world attention. This hypocrisy reaches bewildering heights when our Foreign Ministry secretary Dr. Kohona, an Australian citizen, articulates Asianness (New York Times 9 Mar. 08) as governments who are nice and courteous to each other – leave alone however abominably they treat their own people.

The ACF case has been an act of grand perjury where the entire hierarchy down to the Attorney General’s Department and Police have misled the evidence. We will not insult the AG’s Department by supposing that the truth evaded their intelligence. The President disingenuously cited the paucity of witnesses in the Five Students case and allowed Kapila Jayasekere to get a promotion. The Government has piously refused any foreign role in checking our institutions citing their virtues that now lay naked before the world. Who will now see that a measure of justice prevails in Sri Lanka?  

It is not without great pain that we appeal to the outside world for justice. In our courts and police we had institutions that were working quite well until the communal violence of 1977 when the new UNP regime used the Police as an instrument of appalling crime against a minority. The institutions never recovered since, but deteriorated further. This is not going to change overnight and certainly not under this Government. We have no alternative but to eat humble pie and accept outside help.

It abases us and hurts our pride and often, for unfair reasons, our self-respect. When we had working institutions solving the cases above was routine work. But today the criminality of the very institutions that are meant to deliver justice has thrown huge barriers against justice and the people are helpless.

In this connection we welcome UN Human Rights Commissioner Louise Arbour’s statement on 15th January with regard to the Sri Lankan conflict where she pointed out that international law prohibited all sides in the Sri Lankan conflict from committing unlawful killings or torture, arbitrary detention, recruiting or deploying child soldiers, and forcing people out of their homes. She said “Violations of these rules by any party could entail individual criminal responsibility under international criminal law, including by those in positions of command.” It is now time for her and others of a similar mind to get a move on.

A Note on the Addendum and Witness Protection

We received important testimony that corroborates aspects of the evidence cited above. Every revelation of sensitive evidence at present leaves someone potentially vulnerable. We are constantly faced with the dilemma of balancing the public good that revelation would bring with the danger faced by witnesses. Young Tamils are being targeted by the Defence Ministry’s killers simply because they were active or showed some spirit – that is all the 22 victims considered in this report were guilty of. The recent case at the end of Appendix II shows how little a life counts under this Government. No investigation and even the Press too scared to report it. The Tamils certainly need liberation from the Tigers but not to live under a regime that is no better.

After 15 months of the Commission of Inquiry there is no meaningful protection for witnesses or others. Three witnesses were killed. Haji Abdul Rahuman, a key witness in the ACF case, is missing from late 2006 after the Police had identified him as a witness. The Police has thoroughly misinformed the CoI about him. Others affected in the two incidents have been continually harassed and intimidated into leaving the country. Some did not have the means or the will to carry on in Sri Lanka. Asylum in a few prominent cases cannot be the solution to a much larger problem. This should never be lost sight of.

Appendix I Armed Muslims in Mutur (File Attached)

Appendix II Trincomalee Where What Seems is Not Quite (File Attached)

Appendix III Mr. Yogarajah’s Testimony Concerning his Sons (File Attached)

Addendum Guns, Bullets and Wounds

Press Release for Special Report No 30 (File Attached)

 

Map of Mutur