Sri Lanka: Revoke pardon of soldier convicted of murder

As three legal challenges are being mounted against Sri Lankan President Gotabaya Rajapaksa’s controversial decision to pardon a soldier convicted of the murder of eight civilians, including three children, Amnesty International publishes a thorough analysis of the case and calls on the president to revoke the pardon and commute the death sentence of Sergeant Sunil Rathnayake.

In its ten-page analysis, the human rights organization details how the COVID-19 pandemic was exploited as an opportunity to reverse justice in one of the very few cases where a member of the armed forces was convicted of crimes committed during Sri Lanka’s decades-long internal conflict, reinforcing a climate of impunity and underscoring Sri Lanka’s continued failure to uphold its international obligations.

The Rathnayake pardon has provoked international condemnation, with Michelle Bachelet, the UN’s High Commissioner for Human Rights, denouncing the move as “an affront to victims and yet another example of the failure of Sri Lanka to fulfil its international human rights obligations to provide meaningful accountability for war crimes, crimes against humanity and other gross violations of human rights.”

The case

In December 2000, nine Tamil civilians were travelling by bike to the town of Mirusuvil, in Sri Lanka’s northern Jaffna district. During their visit, they were attacked and killed by members of the 6th Gajaba Regiment’s Special Operations Unit. Eight people, including three children, were among the victims. The youngest was a five-year-old boy, whose corpse bore marks of torture.

Two years later, in October 2002, five soldiers were indicted on 17 counts, including murder, by the Attorney General. The case dragged on for a further 13 years, with proceedings transferred from court to court, interrupted by the assassination of a judge, a delay in appointing a replacement and witnesses fearful of travelling to Colombo

In July 2015, the Colombo High Court found Sergeant Sunil Rathnayake guilty on 17 counts, including murder. He was sentenced to death and fined LKR 51,000. In 2019, the ruling was unanimously upheld by five judges of the Supreme Court who heard the appeal.

Of the many serious human rights violations committed during the three-decade long war, the Mirusuvil case was a rare one where alleged perpetrators from the military were tried and successfully prosecuted.

“Of the many serious human rights violations committed during the three-decade long war, the Mirusuvil case was a rare one where alleged perpetrators from the military were tried and successfully prosecuted,” Amnesty International says in its analysis. “Despite several judicial delays, case transfers, and multiple challenges in the accountability mechanism, the Mirusuvil case managed to achieve a successful conviction where many others had failed.”

In 2015, the Colombo High Court’s ruling was also lauded by the Sri Lankan army, with a military spokesman saying that it was “a good example” that showed the justice system is “working well.”

The pardon

Under international human rights law, the analysis points out, states have an obligation to both prosecute and punish people found responsible for crimes under international law. The penalty in each case must be commensurate to the gravity of the crime, something that is undermined by the recent pardon.

While Sri Lanka’s Constitution empowers the president to issue pardons, it lays down additional procedures that must be followed if the convicted person faces a death sentence. It is not clear whether this process was followed, Amnesty International says, citing a lack of transparency over whether the required reports from the trial judge and the Attorney General were ever submitted to the Justice Minister for his final recommendations to the President.

The pardon of Sergeant Rathnayake is the third controversial pardon granted by a Sri Lankan president over the past year.

In May 2019, in the wake of the 21 April bombings of three churches and three hotels in Sri Lanka, former President Maithripala Sirisena pardoned hardliner Gnanasara Thero, a Buddhist monk, who had been convicted of contempt of court after he intimidated human rights defender Sandhya Eknaligoda and disrupted proceedings on the enforced disappearance of her husband, Prageeth Eknaligoda, where members of the military are the accused. In November 2019, President Maithripala Sirisena also pardoned Jude Shramantha Jayamaha, who was sentenced to death seven years earlier for the 2005 murder of a teenager.

Amnesty International’s analysis points out that the pardon of Sergeant Rathnayake exploited the circumstances of the COVID-19 pandemic, releasing him at a time when people would not be able to exercise their right to freedom of peaceful assembly, when journalists already subject to a climate of self-censorship would find it difficult to scrutinize the move in detail, and when the courts would not be operational to hear legal challenges.

Recommendations

In its analysis, Amnesty International calls on President Gotabaya Rajapaksa to “immediately revoke” the pardon granted to Sergeant Rathnayake, to ensure that he serves a sentence reflecting the gravity of the crime he was convicted for, and to commute his death sentence to one of life imprisonment. Amnesty International opposes the death penalty in all circumstances.

The human rights organization also calls on President Gotabaya Rajapaksa to ensure the families of the victims of the Mirusuvil massacre are protected against reprisals and are given effective reparations for their loss.

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