The Trinco-5 and a Legacy of Impunity

7/28/2019 The Trinco-5 and a Legacy of Impunity

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had arrived in the country to monitor the shaky truce in 2002 were still around. One

month and a few days into the Mahinda Rajapaksa presidency, the ground was about

to shift, just months before a series of unfortunate events broke the tenuous peace

and propelled the country back into full-blown civil war.

Trincomalee had been a potential flashpoint given the town’s ethnic composition and

the ongoing tussle over a Buddha statue in the centre of the Port City. Despite a Court

order dictating its removal, the statue remained and was given security by armed

forces personnel stationed in the city for good measure. The tension had created

sporadic violence and a growing suspicion among residents of the increased military

presence in the town.

It was sundown on 2 January 2006 when a group of seven 21-year-olds, six of them

schoolmates, gathered on Dutch Bay beach. The informal gathering that was to bid

farewell to a friend who would return to the Moratuwa University after vacation went

tragically awry. Many in town heard the boys’ cries as one by one shots rang out into

the night. The area had been cordoned off by security forces who claimed soldiers had

been attacked by the LTTE. The lights in that area alone had been turned off. It took

four minutes – between 7:51 and 7:55 p.m. – for the five executions to take place. The

father of one of the boys was outside the security cordon and heard the screaming.

Half an hour later, five bodies and two grievously injured young men reached the

Trincomalee Hospital. (Terrible truth of the Trincomalee tragedy, D.B.S. Jeyaraj)

Spin doctoring

The lights now back on, the military circulated its version of events. They blamed the

deaths on accidental grenade blasts during a LTTE attempt to attack Special Task

Force Personnel. But soon enough Judicial medical reports refuted the military spin.

All five victims had suffered fatal gunshot wounds. Strangely the ballistics report filed

later showed that the guns used in the murders did not match STF issue weapons.

Desperate to hold on their version of events, Police personnel attempted to obtain

signatures from parents of the five youth, certifying that they were in fact LTTE cadres.

When the attempts at intimidation failed, the Police finally released the bodies to the

families. During a collective funeral at their alma mater, eulogists went out of their wayto reinforce the victims’ innocence and refute the military claim that they were LTTE

members.

The involvement of the security forces personnel in the killings became manifest very

quickly. Just three months after the murders, the University Teachers for Human

Rights in Jaffna released a damning report citing witnesses and pointed to the

culpability of a senior Police officer in the area and STF personnel in the murder of the



‘Trinco-5’. A WikiLeaks cable recently revealed that senior Rajapaksa regime officials

had been well aware of the killers of the Trinco-5 since the incident took place,

although it has taken the Government seven years and seven months and two UN

Human Rights Council resolutions to finally move on the prosecutions.

Basil says he knows

In October 2006, then Senior Presidential Advisor and younger brother of President

Rajapaksa told former US Ambassador Robert O. Blake that the Government knew

STF personnel had been behind the killings. “We know the STF did it, but the bullet

and gun evidence shows that they did not. They must have separate guns when they

want to kill someone. We need forensic experts. We know who did it, but we can’t

proceed in prosecuting them,” Ambassador Blake filed in a report to Washington as

revealed in a WikiLeaks Cable.

Ambassador Blake also wrote that the senior regime official had said that the Sri

Lanka Army had been sufficiently trained in human rights, but that the Sri Lanka Navy

had been credibly implicated in harassment and human rights violations. “We have few

complaints in areas of SLA presence, but we have a problem with the SLN,”

Rajapaksa explained. “We didn’t expect them to work with civilians and they weren’t

trained.”

Once their innocence was verified, the murder of the five young boys in Trincomalee

became an early symbol of the legacy of impunity that would plague the Sri Lankan

Government, both in its execution of the final war to defeat the LTTE and the

continued suppression of legitimate dissent both during and after the war. It was an

incident specifically made mention of in UN High Commissioner for Human Rights

Navi Pillay’s Report on Sri Lanka to the UNHRC in March this year. During his speech

to the Council in March, in response, Presidential Special Envoy on Human Rights

Minister Mahinda Samarasinghe announced that non-summary proceedings into the

murder of the five youths in Trincomalee would begin shortly.

Building a case

Accordingly, the Trincomalee Magistrate is now conducting the non-summary inquiry in

which evidence is led by the Police. At the conclusion of this inquiry, if the Magistratebelieves there is sufficient evidence to indict the accused, the case will be committed

to the High Court by the Magistrate and the record sent to the AG for advice. From this

point onwards, the ball will effectively be in the AG’s Court, the department now

functioning directly under the President. The AG will review the evidence led at the

non-summary inquiry and will consider whether there is sufficient material to form a

prima facie case against the accused. If AG believes so, the department will send an





national inquiries in compliance with international standards. In the run up to CHOGM

2013, the Commonwealth Secretariat has committed itself to providing technical

assistance to the local Human Rights Commission to strengthen the body’s capacity to

“investigate human rights abuses, which would contribute to further enhancing the

independence, authority and effectiveness of the Commission…” the Secretariat said

on its website.

Catch-22

In preparation for CHOGM, the investigation into the Trinco-5 murders could well

become the showpiece. The troubling thing for the Government is that when it arrests

and prosecutes members of the security forces for one such incident, it cannot keep

issuing blanket denials about other alleged atrocities – some of them equally brutal

and serious – it is being called to account for internationally.

Commonwealth Secretary General Kamalesh Sharma, who has advocated

international engagement with Sri Lanka as opposed to isolation on outstanding post-

war challenges facing the country, realises that he has his work cut out for him. Sri

Lanka and the Rajapaksa regime are under increasing international scrutiny over its

human rights record and refusal to reconcile with or offer a political solution to the

country’s Tamil minority community after the end of the war. To make a case for Sri

Lanka to assume the position of the organisation’s chair for the next two years after

CHOGM, the Secretariat has to ensure the Government in Colombo shows some

progress before the summit takes place. As far as the Commonwealth is concerned, it

is a moral issue and if it cannot get Sri Lanka to move on some of the more crucial

issues, it faces its own crisis of legitimacy for affording the organisation’s chair to a

member state whose democratic credentials are far from ideal.

The scramble to fix things three months before the summit is therefore prompted not

only by the Rajapaksa Government’s desire to play host to 54 world leaders and

showcase the post-war miracle that is Sri Lanka this November, but also by the

intense pressure being brought to bear upon the Commonwealth Secretariat to make

Colombo earn the opportunity to play CHOGM host before it is bestowed so much

international glory.In fact UK Foreign Office Minister Alistair Burt tweeted on Tuesday that Britain had

informed Sri Lanka officially that it was expecting progress on reconciliation and media

freedom issues ahead of CHOGM in November. At a meeting with Chris Nonis,

Minister Burt had raised this and other issues including the case of the British tourist

killed in Tangalle in 2011 during a meeting with Sri Lanka’s High Commissioner to UK,

Dr. Chris Nonis.



Media

front

and

centre

Media

freedom issues will be front and centre of the run up to CHOGM 2013 even as the

accreditation and registration process for the summit begins this month, bringing with it

a host of complications for summit organisers. The controversial ‘No Fire Zone’ and

‘Sri Lanka’s Killing Fields’ Director Callum Macrae is seeking accreditation to cover

CHOGM and his attempt to enter Sri Lanka is raising red flags for the Government.

The final word on who enters the country for the summit rests with the Sri Lankan

Ministry of Defence, summit organisers say. This means that media accreditation and

registration will also be scrutinised by the Ministry.

Sri Lanka’s press freedom record being what it is, with journalists killed, maimed and

disappeared over the last eight years, organisers are correctly worried for the fate of foreign journalists who will cover CHOGM in November. It will also battle with the issue

of needing to save face with the international press if Sri Lanka decides to reject visas

for elements of the foreign media whose motives it deems are suspect.

Hectic negotiations are now underway to ensure unimpeded access for media

personnel seeking to cover the summit. Some sections of the Government, organisers

claim, believe the prudent move would be to allow the press into the country, even

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Frances Harrison and Callum Macrae, and engage with them. Barring their entry,

these officials fear, would give further impetus to the notion that Sri Lanka suppresses

the media and has something to hide.

Other more powerful factions of the regime are equally adamant that such journalists

do not step foot on Lankan soil. The Commonwealth is therefore engaged in a delicate

balancing act, between the need to uphold its own values of media freedom and

democracy and the intransigence of the Rajapaksa regime in Colombo.

Enter Menon

Intransigence in fact is a feature of the ruling Government that its counterpart in New

Delhi appears to be compelled to deal with even as it hurriedly moves to put the

brakes on President Rajapaksa’s plans to dilute the provisions of the 13th Amendment

ahead of the election in the north. A visit to Colombo by India’s National Security

Advisor Shivshankar Menon this week proved that both parties to the 1987 Indo-Lanka

Accord were digging in for the long haul for the 13A battle.

Menon, who is believed to have carried a tough message to President Rajapaksa from

Indian Premier Manmohan Singh on his attempt to tinker with 13A and thereby alter

the conditions of the 1987 bilateral agreement, found the Government was equally

adamant on the need to repeal Police and land powers and seek “broader consensus”

on other provisions of the 13th Amendment through a Parliamentary Select

Committee.

In what appeared to be a strange coincidence, the PSC set up to go into constitutional

reform pertinent to the national question met in Parliament on Tuesday, shortly after

Menon had completed his rounds of political discussions in Colombo. The PSC that

currently only comprises Government members will not be the rushed process,

Cabinet Spokesman Keheliya Rambukwella promised three weeks ago, but will likely

take its time over matters. Faced with intense and relentless pressure from New Delhi

and a severe lack of consensus within its own coalition, President Rajapaksa has

decided to shelve plans to tinker with the 13th ahead of the northern poll – and more

importantly CHOGM.

Sri Lanka remains alive to the fact that the summit is going ahead in Colombo –barring any last minute manoeuvres – only because New Delhi intervened to prevent a

high level Commonwealth grouping in April from placing Sri Lanka on the official

agenda with regard to a deterioration of democratic values in the country. Hectic

lobbying by New Delhi ensured that the summit venue did not change and Colombo

remains concerned that if angered, the Indian Government could exert similar

influence to downgrade participation and embarrass Colombo. This would be a last



resort, diplomatic sources say, and would require the Rajapaksa regime to forge

ahead with changes to the 13th and a postponement of the northern election – both

now remote possibilities.

The dissonance between what India wants and the Government in Colombo is

attempting became clear not only during Menon’s visit to Colombo but also following

Economic Development Minister Basil Rajapaksa’s two-day tour of New Delhi last

week. Minister Rajapaksa, who acted as the President’s special envoy, travelled to

New Delhi to brief senior Indian officials there about the Government’s plans about the

13th Amendment. During his visit, the Minister met also with Indian Foreign Minister

Salman Khurshid. Following the visit, the two countries did not issue a joint

communiqué.

The Press Trust of India reported that Minister Khurshid had emphasised to the visiting

Sri Lankan Minister the need to fully implement the constitutional provision dealing

with devolution of powers to provinces without dilution and to go beyond it to ensure

meaningful development. The Ministry of External Affairs in its own version of the visit

said the Indian Minister had stressed the importance of all political parties in Sri Lanka

being represented in the Parliamentary Select Committee dealing with issues relating

to constitutional reform and expressed hope that all parties would join the process.

Two days later, the New India Express reported that Minister Khurshid had strongly

denied giving an indication that he had asked all parties to join the PSC.

Dissonance

“Speaking to Express, official sources said the Lankan side sought Khurshid’s

assistance in getting the Tamil National Alliance (TNA) ‘engaged’ in the PSC process.

In reply, Khurshid said he would speak to the TNA to ‘ascertain their thinking’.

Khurshid also added that India would continue to ‘facilitate dialogue’ between the

Lankan Government and the TNA as part of the political process,” the media report of

Khurshid’s denial said.

Menon’s visit too proved that India was adopting a unique approach to the problem of

the 13th Amendment, when the senior Indian official told the Sri Lanka Muslim

Congress during a meeting at the Taj Samudra in Colombo that New Delhi would not“allow” Colombo to alter the Indo-Lanka Accord unilaterally.

Diplomatically speaking, it is a suave move; India cannot propose to intervene in the

question of a domestic constitutional reform proposal such as altering the provisions of

the 13th Amendment. What it can do is use its full strength to ensure the provisions of

the Indo-Lanka Accord – a bilateral agreement between the two sovereign states – are

not tampered with without consultation. This is why Indian officials keep referring to Sri



Lanka attempting to alter the Accord, instead of opposing outright the attempt to

reform the 13th Amendment. The Indo-Lanka Accord lays the framework for 13A and

the question now is whether one can be altered without fundamentally altering the

terms of the other.

What remains clear however that as adamant as New Delhi is to prevent the

Rajapaksa regime from reneging on its commitments on devolution to the Tamil

people, the Rajapaksa administration is equally resolute in its vision to dilute the

powers accrued to the provinces, especially as it is faced with the prospect soon of a

council controlled by the Tamil National Alliance. The regime’s anti-devolution agenda

therefore is likely to see a resurgence once the Commonwealth Summit and the

northern election and possibly even the next session of the UNHRC is done and

dusted.

The Presidency of Mahinda Rajapaksa according to some analysts is likely to be

defined by a few fundamental things. These include his defeat of LTTE terrorism, an

apparent culture of impunity his regime is perceived to be fuelling and the alleged

denial of political concessions to end an ethnic struggle he and his administration do

not believe exists. And they are legacies the Rajapaksa regime may be determined to

protect and perpetuate, regardless of the consequences.

Documents

The Trinco-5 and a Legacy of Impunity