ACKNOWLEDGMENTS This report would not have been possible without the incredibly courageous people of Kumarapuram, who remain committed to obtaining justice for the horrific atrocity inflicted upon their small community 21 years ago. We are immensely grateful to these survivors who re-told the traumatic stories of the massacre to our researchers. Their continued perseverance and battle for justice against all odds is deeply inspiring. We are also grateful to the many human rights lawyers who provided their valuable insights for this report. Their tireless work to promote and protect victims’ rights in Sri Lanka is sincerely appreciated and remains extremely valuable in the promotion of justice and accountability. This report was researched and written by Dharsha Jegatheeswaran and Mario Arulthas. We would like to thank Ranitha Mayooran and Gajen Mahendra for their valuable research assistance. We would also like to express our deepest appreciation to our volunteers both across the diaspora and in the North-East of the island, who assisted with the research and production of this report. GLOSSARY ACF Action Contre la Faim ASP Assistant Superintendent of Police CHRD Centre for Human Rights and Development CTF Consultation Task Force HQI Headquarters Inspector ITJP International Truth and Justice Project LTTE Liberation Tigers of Tamil Eelam MP Member of Parliament NESOHR North-East Secretariat on Human Rights OHCHR Office of the High Commissioner for Human Rights OISL Office of the High Commissioner for Human Rights’ Investigation on Sri Lanka PEARL People for Equality and Relief in Lanka PTA Prevention of Terrorism Act TNA Tamil National Alliance TULF Tamil United Liberation Front UN United Nations Table of Contents Chapter 1: Introduction ................................................................. 0 Chapter 2: Analysis of the Kumarapuram Massacre Case .................... 3 I. The Massacre ........................................................................................................................... 3 II. Procedural History of Case ................................................................................................. 7 III. Detailed History of the Case ............................................................................................. 9 Investigation and Evidence-Gathering Phase ........................................................................................................................ 9 Indictments ............................................................................................................................................................................................ 10 Forum Selection ................................................................................................................................................................................. 10 Electing for a Jury Trial .................................................................................................................................................................... 12 Delay in Proceedings ....................................................................................................................................................................... 12 Trial and Acquittals ........................................................................................................................................................................... 12 IV. Barriers to Credible Prosecution .................................................................................... 16 (a) Improper Investigation and Evidentiary Issues ........................................................................................................... 17 (b) Transfer of case .......................................................................................................................................................................... 19 (c) Intimidation and Harassment of Witnesses, Victims and Others .................................................................. 20 (d) Election of Sinhala-Speaking Jury Trial ........................................................................................................................... 21 (e) Political barriers: lack of political will, politicization, and delays ....................................................................... 21 V. Impact of Acquittals on Victims/Community ................................................................. 25 Chapter 3: Systemic Barriers to Credible Prosecution of Atrocity Crimes in Sri Lanka’s Criminal Justice System ............................. 28 I. Improper Investigation and Evidentiary Issues ............................................................... 28 II. Transfers of Cases ............................................................................................................... 30 III. Intimidation, Harassment and Reprisals of Witnesses, Victims and Others Involved in Cases ..................................................................................................................... 32 IV. Use of Jury trial versus a “trial-at-bar” ......................................................................... 33 V. Political Barriers: lack of political will, politicization and delays ............................... 35 Chapter 4: Conclusion .................................................................. 41 Appendix – Table of Massacres of Tamils between 1956 - 2008 ... 43 Chapter 1: Introduction On October 1, 2015, Sri Lanka co-sponsored Resolution 30/1 at the UN Human Rights Council.1 Among its commitments therein, Sri Lanka undertook to create a judicial mechanism including foreign judges, prosecutors, defense lawyers and investigators, to investigate and prosecute violations of human rights and international humanitarian law. Numerous reports, including those by the Office of the High Commissioner for Human Rights’ Investigation on Sri Lanka (OISL), have concluded that Sri Lanka’s domestic legal system is incapable of credibly prosecuting atrocity crimes2 without significant international involvement.3 This is the result of a variety of factors, with the largest being the lack of political will on the part of the government to prosecute atrocity crimes perpetrated by the state. There are many steps that Sri Lanka could have taken in the 18 months since Resolution 30/1 was adopted to prepare its legal system to prosecute atrocity crimes. The government, however, has either chosen not to take these steps or has not adequately undertaken them. For example, Sri Lanka has been inexplicably slow to adopt legislation incorporating international crimes into the domestic criminal code. On witness and victim protection, the Sri Lankan government established the ‘National Authority for Victim and Witness Protection’ (National Authority), in November 2016 following the enactment of the Assistance to and Protection of Victims of Crime and Witnesses Act, No 4 of 2015.4 The National Authority has failed to earn the confidence of victim communities, who remain skeptical that it will be impartial or effective.5 A recent report by the International Truth and Justice Project noted that four of the seven appointments to the National Authority are inappropriate due to their past activities in the security forces. One of the appointments, for example, was identified by a UN report as an alleged perpetrator of torture.6 1 “Promoting reconciliation, accountability and human rights in Sri Lanka” UN HRC Resolution 30/1 (1 October 2015), A/HRC/30/L.29 [“HRC Resolution 30/1]. 2 Throughout this report ‘atrocity crimes’ is used as an all-encompassing category including violations of international human rights and humanitarian law, war crimes and crimes against humanity. 3 “Report of the OHCHR Investigation on Sri Lanka (OISL)” (16 September 2015), Office of the High Commissioner for Human Rights, A/HRC/30/CRP.2 [OISL Report 2015]. 4 “Assistance to and Protection of Witnesses Act, No. 4 of 2015” (07 March 2015), Parliament of the Democratic Socialist Republic of Sri Lanka, accessed at: http://www.srilankalaw.lk/gazette/2015_pdf/4%20of%202015.pdf. 5 “Final Report of the Consultation Task Force on Reconciliation Mechanisms” (17 November 2016), National Consultation Task Force, Vol. 1, at pp 412-413 [“CTF Report”]. 6 “Putting the Wolf to Guard the Sheep: Sri Lanka’s Witness Protection Authority” (13 February 2017), International Truth and Justice Project. 1 Instead, in the 18 months since Resolution 30/1 was adopted, the president, prime minister and other senior Sri Lankan officials have repeatedly rejected the notion that international actors, particularly foreign judges, should be involved in a judicial mechanism – despite agreeing to this component in operative paragraph 6 of Resolution 30/1.7 Recently, former president and current head of the Office of National Unity and Reconciliation, Chandrika Bandaranayake Kumaratunga, rejected the entire notion of a special court8, although it was she who pledged to establish such a court last December.9 The Sri Lankan government appears to be trying to argue that with the regime change from Mahinda Rajapaksa to Maithripala Sirisena, the independence of the judiciary was restored, and now Sri Lanka is capable of domestically prosecuting atrocity crimes without international involvement.10 However, as this report demonstrates, the issues with the Sri Lankan criminal justice system extend far beyond the question of judicial independence. This report focuses on the