Untitled - International Commission of Jurists

communities. Krishanthi Kumaraswamy was a 17-year-old Tamil schoolgirl who was
raped and murdered in 1996 by soldiers attached to the Chemmani checkpoint,
together with the murder of her mother, brother and friend who went in search of her.
In the second case, 25 Sinhalese schoolchildren of Embilipitiya, a Southern hamlet,
were forcibly disappeared in 1989 by soldiers acting in collusion with their school
principal, driven by an absurd but ultimately tragic desire for vengeance. In both these
cases, junior officers were convicted while their superiors were left untouched,
despite evidence (particularly in the Embilipitiya case) that responsibility for these
grave crimes lay higher in the chain of command.
Failures in accountability for grave human rights violations have been abetted by
emergency laws which have replaced the country’s criminal procedure and evidence
laws (based on the British legal codes) for most of the past three decades and which
allow, inter alia, arbitrary arrests, incommunicado detention and the admittance of
confessions made to police officers above a particular rank with the (virtually
impossible) burden being on the detainee to prove that the confession was made
involuntarily. The impact of these emergency laws on the ordinary law enforcement
mentality has been so great that even during the intermittent ‘ceasefire’ periods in the
past, when normal criminal procedure laws were restored, police officers continued to
use extensive powers of search, arrest and detention earlier permitted under the
emergency regime, regardless of the fact that these powers were no longer legally
exercised. Practices of torture during these periods, regardless of ethnicity or race and
governed only by whether the victim belongs to the socially and economically
marginalized classes, have been well documented. The replacement of the normal law
with emergency law is now taken for granted; emergency law was not lifted, even in
part, after the military decimation of the LTTE in 2009.
3. Limitations of the investigative and prosecutorial system
As this research highlights, Sri Lanka’s investigative and prosecutorial system is
seriously flawed. Lack of independent investigations and a hostile prosecutorial and
overarching legal system has led to victims being penalized at all stages of the
process, from the very first instance of lodging a first information in the police station
to the protracted and intensely adversarial nature of legal proceedings, resulting in
many victims and witnesses being coerced and compelled to change their testimony,
again reinforcing the cycle of impunity that prevails. The killing of victims and
witnesses has been a persistent feature of the country’s troubled criminal justice
system for many years.
Particularly in the North and East, the conflict led to the persecution and
marginalization of the civilian population at the hands of a range of actors. These
include government perpetrators who have been repeatedly and systematically
implicated in human rights abuses, the LTTE, as well as by paramilitaries including
but not limited to the Karuna faction, the latter acting allegedly in concert with some
sections of government security forces in countering the LTTE. These victims have
been traumatized at all stages of the legal process, ranging from transfer of cases
(from local courts to judicial forums situated in predominantly majority provinces or
the capital) to painfully protracted legal proceedings which they are required to attend
despite financial and social hardships, with many of them living in refugee camps.
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