The Krishanthi Kumaraswamy case

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Chulani Kodikara, doctoral candidate, University of Edinburgh, in an interview with Prashanthi Mahindaratne, state counsel in the landmark Krishanthi Kumaraswamy rape and murder case prosecuted during Sri Lankaís civil war. Mahindaratne was later appointed as a trial attorney at the United Nations International Criminal Tribunal for the former Yugoslavia, The Hague.

 

Let us begin with your involvement in the Krishanthi Kumaraswamy gang rape and murder case.

I was at the Attorney Generalís Department and this was in September 1996 when the incident happened. At that time Krishanthi Kumaraswamy was 18 years old. She was a resident of Kaithady, in the Chemmuny area of Jaffna. She was cycling back home after sitting for her advanced level final paper, and had been stopped at a checkpoint. I wonít go into the evidence, I will just say what happened. She was stopped at a check point and questioned. Thereafter she disappeared. Her father had previously passed away. And her mother and brother were waiting for her. As she didnít turn up till late evening, they together with their neighbour, went looking for her; they had heard that she had been seen at this particular checkpoint. They had gone to other places too prior to that in search of her. Then they too disappeared.

This happened soon after CBK (Chandrika Bandaranaike Kumaratunga) became president. She came into power on the promise that she would address human rights abuses and violations and that she would end the era of impunity. Krishanthiís family had connections and so the story reached Colombo. Otherwise, Iím sure there were so many other Krishanthis who have disappeared and their stories didnít necessarily reach Colombo. There were newspaper articles and some attention was given to the incident, and even the president was apparently upset. She contacted Sarath Silva, the then Attorney General (AG) and asked him to take over the investigation. The ordinary police had already been investigating the matter, but of course nothing much was coming out of it. She instructed the AG to ensure that due prosecution was carried out. The problem was that this was at the height of the war, and the crime had happened in an inaccessible area where the military and the Liberation Tigers of Tamil Eelam (LTTE) were present. The Attorney Generalís department didnít have a branch there, which meant that a State Counsel had to travel from Colombo to Jaffna during the conflict period. So, he had to hand-pick somebody to travel to Jaffna. Of course, I jumped at it. It was a very exciting prospect. I had to direct the Criminal Investigation Department (CID), which had been ordered to take over the investigations from the ordinary police. At this stage we didnít have any clue or evidence.

We were transported to Jaffna in a military aircraft. Once we got there, it occurred to us that unless the military cooperated we would not get any results. One doesnít have to be a genius to figure out that the area was in the hands of the military. Ordinary police, even the CID, would not have been able to investigate without the military. Fortunately for us there was a very good military police commander, a colonel in charge of the military police battalion in the Jaffna area. At some stage he became convinced that it was quite important for the military to cooperate. It was the military police that initially broke through the blank wall. The moment they identified the area, they could easily identify the units that were deployed there. This is why it is easy to identify perpetrators when the military commits crimes: because they are so regimented in their conduct. The movements of the units are known. Everything is on record. Even when they go off duty, the exact times are known. So the military police succeeded in establishing which unit/platoon had been deployed at the Chemmuni checkpoint during the particular time frame when the civilians had disappeared. They established the identities of particular men who belonged to the platoon, led by one Corporal Somaratne Rajapakse. In the course of the interrogation, some members of the platoon broke down and confessed to the crime.

It was said that Krishanthi had been seen by the soldiers going by this checkpoint. These people had been observing this girl for some time. This was the final day of her exam. That day they stopped her, detained her in the bunker and gang raped her. They even talked about what she had said during the final stages of her life. First, she resisted and struggled and then it became obvious to her that there was no way that she was going to get out. She realized that she would be killed. I donít know whether this is the kind of material that people want to hear about.

 

It is really important. You may be the only repository of this story.

What has come to my mind from all of this is Krishanthiís last moments, which was divulged from the consistent confessions made by the soldiers. Nobody was fabricating.

When Krishanthi had been raped by about five men she reached a point when she gave up. When the sixth approached her, she knew for a fact that she was going to be raped again. But she didnít resist any longer. Instead she just said, ĎPlease give me a moment. Let me have some water.í When they confessed, the soldiers appeared to be remorseful. Based on the confessions, the CID and a magistrate (you have to have a magistrate for exhumation) got the soldiers to show where the bodies had been buried. There were 11 men at the Chemmuni checkpoint and nine of them raped her. There were two reserve policemen who didnít rape her.

 

Where did they take her?

She was raped behind the bunker, in an open area. Then they brought a rope, strangled her and buried her behind the checkpoint in a marshy land. The body was naked but her clothes were put into the same pit. Thereafter, her mother, brother and the neighbour came to the checkpoint in search of the girl. Then the soldiers and the corporal panicked when these people came right up to the checkpoint. They detained the three people also, strangled and killed them and buried them in the same marshy land. There were four separate pits but in the same marshy land. In the course of confessions, it came out that the three civilians had also realized they were going to be killed and had given up, because the mother had taken off her thali (gold necklace worn after marriage) and all three had handed over their identity cards, in an act of surrender.

The soldiers identified the pits and the bodies were recovered. The biggest problem was that this was after one and half months of being buried in a marshy, waterlogged area. They were in an advanced state of putrefaction making identification difficult. People in these areas donít have dental records. We were also at a stage when DNA testing was not easy because we didnít have resources and finances. We actually adopted an extremely primitive method of identifying the bodies. You will laugh at this system but it was effective. We found the clothes, which contained dhobi (laundry) marks. During those times you had these dhobis (laundrymen). The dhobis collect clothes from different households and they print a mark on the clothes to identify a particular household. So the Kumaraswamy family had this specific mark. We found the dhobi of that area and showed him the marks on the clothes. He identified the clothes found on the bodies as those from the Kumaraswamy household. Itís through this primitive method that we identified the bodies. But it was sufficient for the courts as we didnít have any other method. There were no dental records and none of them had any recent surgeries. We were also working within this system in the late í90s as we didnít have enough finances.

Thereafter, we had other breakthroughs. For instance, we found the motherís thali in the possession of the sister of the first accused. Then we found other little items of circumstantial evidence that also linked the suspects to the offence. It was important for us to advance the charge of rape because Krishanthi had been raped. The problem was that since the body was at a stage of advanced putrefaction, we didnít have physical evidence of rape, nor were there independent eyewitnesses. Now if we proceeded with just murder based on the available evidence, it would not have been satisfactory because Krishanthi had been raped. Because it was a crime committed in the context of war, it was important to advance the charge of rape. Two of the suspects, civilian policemen, did not rape Krishanthi but had assisted in the disposal of the body. Because they had not raped her and also had not been involved in the killing itself, we decided to give them a conditional pardon. A conditional pardon is where you grant a suspect immunity from further prosecution on the condition that they testify against the other accused. They could have been found guilty of murder through the charge of conspiracy, but thatís a vicarious form of liability. However, we had to have some way of finding evidence. We used their testimony to advance the charge of rape and we got a conviction.

We also came up with an innovative method to further strengthen the case for the prosecution. We used the confessions made by the military personnel as evidence, because in their confessions they admitted that they had raped the girl. The defence took the position that confessions made by a suspect to a police officer are not admissible evidence in accordance with the Evidence Ordinance. The Defence Counsel argued that the Evidence Ordinance, which prohibits the admission into evidence of a confession made by a suspect to a police officer, applies in this instance too. We used Indian jurisprudence to show that this is indeed different; when a soldier or a corporal makes a confession to a military police officer, it is completely different from a case where a civilian makes a confession to a policeman. We argued that, therefore, the prohibition in the Evidence Ordinance didnít apply to this confession. The court accepted our argument. And we managed to use the confessions, and that allowed us to establish the charge of rape against the accused.1

 

You were able to convince the military and police of the importance of investigating this case. Otherwise, there appears to be the sense from the political leadership that, ĎIf you are in the military, whatever you do, we will cover up for youí. How did you manage to convince the military to cooperate?

I wouldnít say that I convinced them; it was the command climate. It was easy for me because I was working in the era of Chandrika Bandaranaike Kumaratunga. She spoke much about peace and human rights. During that time, there was this particular project called ĎHearts and Mindsí to win the hearts and minds of the people in the war zone. I asked a military officer I was working with how theyíre going to win the hearts and minds of the people when some of their people had been killed. If the regime doesnít do anything then thereís clear impunity. The only way you can win hearts and minds is to show that itís a sporadic act done by individuals, that thereís no policy behind that violence. Fortunately, there were intelligent officers who appreciated it.

 

Do you think that it had implications in terms of sending out a message to other officers?

The command climate was very clear that it is not going to be tolerated. Krishanthi Kumaraswamy was one of the few cases. There havenít been many cases where military personnel were tried for crimes committed in a war zone. When this happened there was a huge no-no factor in Colombo. And it was felt all the way down through the ranks. The stand of a government makes a huge difference to how a military reacts. This is the case for war crime cases I prosecuted in the Hague. For years the International Criminal Tribunal for Yugoslavia had been looking for Karadzic. And then they had a change of government and security heads changed. Within a week Karadzic was found. It was so easy. It has to come from the top. Itís a real pity, because I think this government should send out a message with respect to the crimes committed in the final phase of the war that there was no policy behind the crimes and those were sporadic individual crimes. If you think about Muttur,2 I canít see how there could be a policy behind the Muttur crime. How could you plan that? This could have easily been demonstrated to be a sporadic individual act done by individual soldiers. But they just lost the opportunity. The moment you start covering up, the moment you donít act, then you show policy; then you are encouraging others to do the same.

 

What are your memories of prosecuting?

When we were trying to lead evidence in the Krishanthi case, we found that the witnesses refused to come (to Colombo) from Jaffna. They (the dhobi, the witnesses who identified the thali, and the place where Krishanthiís bicycle pieces were) Ė about eight civilians Ė refused to travel to Colombo even though everything was provided. They felt that it was a farce. Without them we couldnít have gone far. We were in a quandary. One couldnít issue warrants against them. These are poor people who had already gone through a bad experience. What we did was that we got Thinakaran and all the Tamil papers to write an article that Colombo is ready for trials. The judges and the prosecutors were all Sinhalese, and they were ready for the trial but civilian witnesses who were Tamil were not cooperating. In a sense the papers played the ethnic card. Itís a nasty trick but we had to go with it because we wanted them to come and testify that their kith and kin had been killed. Next thing, they contacted the police and said they were ready to come and testify. That was an interesting case because victims were Tamil; accused were Sinhalese and members of the military; judges were Sinhalese; soldiers were Sinhalese; prosecutors were Sinhalese. This just showed that you can do it.

 

In terms of challenges, I know the order came from the top, but in the process were there any other challenges?

There was constant telephone abuse. People rang and abused me. Sometimes my poor mother answered the phone. They were anonymous. One person said that in history there had always been a woman who was a traitor, and that this time it was me. I was once invited to talk at a Rotary Club about the case. My God, I was attacked by one guy there. Later on I found that his brother was in the military. He attacked me (not physically) by saying something along ethnic lines, that I prosecuted heroes for killing terrorists etc. I was taken aback. In an organization like that where one expects enlightened people, to find such a person labelling civilians in Jaffna as terrorists! Even though the climate was conducive for that kind of prosecution, one finds a large number of such people who are racist. Of course, on the telephone I was badly abused.

Then we had this situation while in the process of conducting the prosecution, the accused jumped off from the dock and ran away. They escaped and were found later. One person went missing and he was never found Ė not to date. I donít know whether he was found or not after I left. One person died in prison. There was an issue as to how he died. They said it was meningitis, but then human rights organizations were worried as to whether there was an assault while in custody.

This particular case showed me how the conduct of human rights organizations can sometimes be counterproductive. I was really angry and worked hard to get these bastards. Yet, every time I stepped out of the AGís department, I was confronted by people from human rights organizations carrying placards. The AG was under pressure and he asked me to fast-forward the indictment. The president would say indict because there was so much pressure. But sometimes one has to fine-tune oneís case. There is no point in rushing into court. One must go with a winning case. That means taking time. From the outside, you canít appreciate that.

It took about six months. I was pressured to do it fast. In March or April of 1997 the case started and in 1998 it was over. Krishanthi Kumaraswamy was the first successful prosecution against military personnel for rape in the context of the conflict in Sri Lanka.

 

Footnotes:

1. On appeal, a divisional bench of the Supreme Court in February 2004 while affirming the conviction and High Court sentence, ruled that confessions made to military officers attract an absolute bar. This ruling however had no practical effect in the Krishanthi Kumaraswamy case as the conviction and sentencing was upheld on the basis that the evidence was strong enough even without the confessions in issue. (Kishali Pinto-Jayawardena, Still Seeking Justice in Sri Lanka: Rule of Law, the Criminal Justice System and Commissions of Inquiry Since 1077. The International Commission of Jurists, January 2010, pp. 152-154).

2. This is a reference to the killing of 17 aid workers of Action Contre la Faim on 4 August 2006.

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