US Govt’s pardons vs Sri Lanka’s pardon of Sgt. Sunil Ratnayake | Sunday Observer

US Govt’s pardons vs Sri Lanka’s pardon of Sgt. Sunil Ratnayake

12 April, 2020

There is much hullabaloo over the Presidential pardoning of Sergeant Sunil Ratnayake by President Gotabaya Rajapaksa. The usual set of culprits are 24x7 preoccupied in carrying out a globally hyped campaign against the decision. When some of those pointing fingers have more than questionable records themselves it behoves us to showcase examples. Everyone does make mistakes. People are after all human. There is no 100% perfect entity. No one is not unbiased. Plenty of Judges have given questionable verdicts. Plenty of lawyers have misled the jury. Plenty of witnesses have misled the Court too. In such a scenario we must be able to use our common sense to derive our own conclusions. Let us compare the Mai Lai massacre with the Mirusuvil massacre.

US in Vietnam

US decided to deliver democracy to Vietnam during 1962-1971 resulting in the killing of 400,000 people and 500,000 babies born with birth defects with some two million continuing to suffer cancer and related illnesses from the 20million gallons of chemicals including Agent Orange dumped by US military on Vietnam.

The Mail Lai village massacre took place on March 16, 1968 by some 100 American soldiers led by Lieutenant William L Calley.

The 11th Brigade Charlie Company is alleged to have killed over 500 civilians ordered by Calley,

182 women – 17 of them pregnant, 173 children – 55 infants and 60 – old aged men.

Calley’s three day court martial ended on March 29, 1971 (three years after the Mai Lai Massacre)

The Army jury convicted ONLY Calley of mass murder of 22 persons. He was sentenced to life of hard labour but President Nixon intervened and ordered Calley’s release from Army prison. Calley was put under house arrest and then freed three months after Nixon left office. Calley was a free man by 1974.

Ironically the US Army filed charges against 14 officers just like the 14 Sri Lanka Armed Forces personnel arrested in connection with the Mirusuvil murder in Sri Lanka in 2000.

Let us take the account of Seymour M Hersh who had visited and written a series of articles in the 1960s and even returned to Vietnam in 2015 (at 78years).

His 1971 article was first published by the New Yorker.

At the Army inquiry it was disclosed how Calley allegedly ran after a two or three year old boy, caught him and threw him into the ditch where all others were killed and shot him dead too.

Some soldiers claimed to have disobeyed Calley’s orders but Private First Class Paul Meadlo had joined Calley in the shooting. The next day Meadlo had stepped on a land mine and his right foot had blown off. A GI also recalls Meadlo cursing Calley when he was being evacuated “God will punish you for what you made me do,”. Injured Meadlo returns to US and Hersh locates him at his farm home in Indiana. His mother Myrtle was to tell Hersh “I sent them a good boy and they made him a murderer.”

Meadlo estimated that he had killed fifteen people in the circle. “We all were under orders,” he tells Hersh.

Finally, Hersh located Calley in Fort Benning. Hersh had been allowed to read and take notes from a classified charge sheet that accused Calley of premeditated murder of 109 ‘oriental human beings’. When Hersh interviewed Calley in 2015 he was 76 years.

Hersh had also been privy in 1998 to an unpublished August 1967 report by retired Pentagon Official W Donald Stewart at the request of Secretary of Defence Robert McNamara (later became President of World Bank). The report showed that US troops in South Vietnam did not know the Geneva Conventions. The soldiers, “felt they were at liberty to substitute their own judgment for the clear provisions of the Conventions. . . . It was primarily the young and inexperienced troops who stated they would maltreat or kill prisoners, despite having just received instructions” on international law.

Stewart tells Hersh that he understood why the report was suppressed “People were sending their eighteen-year-olds over there, and we didn’t want them to find out that they were cutting off ears.”

In 1968 Meadlo was 19years, married with 2 children and William Calley was just 28years.

An article published by Evie Salomon in May 2014 claims US President Nixon attempted to cover up the Mai Lai Massacre following release of mostly hand-written notes of meetings with Chief of Staff H R Haldeman in 1987.

1 December 1969 ‘Task Force’ – Mai Lai “dirty tricks” and “discredit one witness” in order to “keep working on the problem” (clarification that the tricks would ‘not be too high a level’)

Who were the ‘dirty tricks’ meant to discredit? None other than pilot Hugh Thomson and gunner Larry Colburn who from their helicopter saw the massacre in progress and tried to stop it and even saved a boy from the ditch and took him to hospital. But when they returned to US they were treated as traitors. Colburn says “The U.S. claims to be concerned with collateral damage with civilians that are caught up in war zones, but I don’t believe that,” Colburn says. “That’s lip service.”

Their story came out in 1998 – “Back to Mai Lai” produced by Tom Anderson, reported by Mike Wallace and aired on March29, 1998.

Both travelled back to Mai Lai in 2001 and met the 8 year old boy they saved who was now 41 years. Thompson died in 2006.

The alleged Mirusuvil massacre of 8 Tamils including a 5 year old child in Jaffna, North Sri Lanka allegedly by Sergeant Sunil Ratnayake: He was convicted by a High Court Trial-at-Bar by a 5 member Supreme Court bench though the judgement does not state anywhere that Ratnayake PERSONALLY killed any of the 8 victims. Did those issuing statements read the judgement? Probably not.

The incident is alleged to have taken place on December 19, 2000 around 4p.m. The only ‘evidence’ is based on one witness – Maheshwaran against 14 Sri Lankan soldiers.

Maheshwaran’s account of the incident is an exercise in imagination.

Only he had been blindfolded and beaten unconscious despite other men being present.

Only he had been carried by two Sri Lankan soldiers and tossed over the fence and he was so lucky that the blindfold got caught to the barbed fence and he could see.

He was the lucky one to be even taken to the supposed sight of the ‘murders’ and shown the crime and we have to next imagine him running clad only in his underwear ¼ mile to his aunts. The next morning he was so lucky that his father came where he was to look for him and then both went to complain to EPDP office

Major Sydney de Soyza was in charge of the military police in the Jaffna region, Section 140 states that members of an unlawful assembly shall be punished with imprisonment of either description for a term which may extend to six months, or with a fine, or with both and Section 146 of the Penal Code states that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, every person who, at the time of the committing of that offence, is a member of the same assembly is guilty of that offence.

Count 10 was causing hurt to Maheshwaran, an offence punishable under Section 314 of the Penal Code read with Section 146 of the Penal Code. Section 314 of the Penal Code states that whoever voluntarily causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Counts11 to 18 are again counts of murder in respect of the persons referred to in Counts 2 to 9, however the basis of liability under the said Counts is Common Intention articulated in Section 32 of the Penal Code and Count 19 again is the corresponding charge of causing hurt, referred to in Count 10, based on Common Intention.

Section 32 of the Penal Code states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The High Court Trial-at-Bar acquitted the 2nd, 3rd, 4th and 5th accused, but convicted the 1st Accused Lance Corporal Sunil Ratnayake on all counts referred to above. On appeal, the Supreme Court unanimously set aside the conviction of Lance Corporal Sunil Ratnayake, on Counts 1 to 10. What remained were Counts 11 to 19 which are based on the vicarious liability of common intention under Section 32 of the Penal Code. The SC also made the following observations:

• The entire prosecution case hinges on Maheshwaran’s testimony.

• This is a case where the court has to decide, mainly on circumstantial evidence.

• The acquittal of the 2nd, 3rd, 4th, and 5th Accused by the High Court Trial-At-Bar was due to the failure on the part of the prosecution to establish the identities of those Accused to the degree of proof required by law.

• However, the spontaneous identification of Lance Corporal Sunil Ratnayake by witness Maheshwaran at the scene of the crime (as recounted above) remains unassailed.

A borderline case

On the basis of the above, the SC held that Lance Corporal Ratnayake was not only liable for the acts committed by him, but also for the acts committed by others who were with him as well, according to Section 32 of the Penal Code. When the deceased were seen last, they were detained by Ratnayake and the other Army personnel who were present. It was on that basis that the SC upheld the conviction of Lance Corporal Sunil Ratnayake, on Counts 11 to 18 and on Count 19 of causing hurt to Maheshwaran. Thus it can be seen that Ratnayake was not convicted due to evidence indicating that he personally killed the eight victims but on the basis of vicarious liability for the whole incident under Section 32 of the Penal Code. The principal witness Maheswaran accused Lance Corporal Ratnayake of assault but did not say that he had seen Ratnayake killing anybody or even holding a weapon which may have been used to kill the people concerned. Because the conviction has been affirmed on the basis of Section 32 of the Penal Code, there is a borderline element in this case.

Certain international and national parties whose interests are only too well known, have rushed to condemn the release of Sunil Ratnayake. However when President Maithripala Sirisena released an LTTE suicide cadre who had been convicted of complicity in a plot to kill him, his action was welcomed as reconciliation. It is a well-known fact that the general idea prevalent among these interested parties is that members of the armed forces should be jailed and members of the LTTE released. The former for ‘accountability’ and the latter for ‘reconciliation’! This works out to be a neat arrangement whereby the local and international backers of the LTTE are able to punish those responsible for their defeat. The double standards applied to the release of convicted LTTE cadres on the one hand and convicted armed forces personnel on the other, is going to preclude the chances of success of any homegrown method of clearing up certain residual issues still remaining after the war.

On page 9 of President Gotabaya Rajapaksa’s presidential election manifesto, it was stated that steps would be taken to either indict or release those who had been arrested on terrorism charges and had spent a long time in remand. This is a reference to the small number of hardcore LTTE cadres still in custody. The government rehabilitated and released over 11,000 LTTE cadres who had surrendered with their weapons. If the government applied the vicarious liability provision in Section 32 of the Penal Code to these cadres, the likelihood is that many of them would have been convicts by now. But the government chose not to prosecute the vast majority of LTTE fighters even though quite a number of them would be responsible for atrocities far in excess of the Mirusuvil incident. If the President is to ever actually implement what was said on page 9 of his manifesto in relation to the LTTE cadres still in remand, the pardoning of individuals like Ratnayake is a sine qua non. It should be borne in mind that at the time the government defeated the LTTE, the latter had been officially designated as the deadliest terrorists in the world outranking even Al Qaeda.

It was 11,000+ terrorists with such a reputation that the government rehabilitated and released. It is doubtful whether the government of any other country would have done that. Unlike its predecessor, the present government cannot follow a stated policy of jailing armed forces personnel while freeing terrorists. If the LTTE cadres still in remand are to be released, that has to be preceded by the release of convicted or remanded armed forces personnel irrespective of whether they happen to be borderline cases like that of Ratnayake or not. During the Yahapalana rule we saw the spectacle of ex-LTTE terrorists enjoying their amnesty in peace while armed forces personnel, sometimes long after retirement were being hounded with arrests, investigations and court cases. When former LTTE cadres are released, nobody asks for a breakdown of the crimes and atrocities they are known to, or suspected of having been involved in. Yet everyone knows that these are dastardly terrorists who managed to outdo even Al Qaeda and come out as number one in world rankings.

Everyone also knows what their common intent was in terms of section 32 of the Penal Code. They are nevertheless rehabilitated and released in the name of restoring normalcy to the country. The word ‘impunity’ is used by the interested parties mentioned above, only in relation to the armed forces of Sri Lanka or those who were terrorists earlier, but had later defected to the side of the government. That term is never used in relation to the LTTE. In fact, they welcome immunity granted to the LTTE, as measures aimed at promoting reconciliation. Amnesty is defined in the Encyclopedia Britannica as a sovereign act of oblivion or forgetfulness for past acts and is said to have been derived from the Greek word amnesia. The rehabilitation and release of over 11,000 ex-LTTE cadres is for all practical purposes an amnesty granted to them. If amnesties are being granted, it goes without saying that individuals on both sides of the conflict should benefit from them if there is to be any fairness in the process.

Sergeant Sunil Rathnayake was arrested under a UNP government in 2002

Sergeant Sunil Ratnayake was convicted of murder under a UNP government in June 2015 under a legally questionable ‘national government’ cobbled after a Presidential Election in January 2015.

If charges were brought against all 5 armed forces under the Penal Code section 32, 146 and 296 – why did 4 suddenly get acquitted on the ground that their identities could not be established at the Trial-at Bar and only Sunil Ratnayake was convicted.

Sunil Ratnayake’s verdict was based on CIRCUMSTANTIAL EVIDENCE GIVEN BY A SOLE SURVIVOR (Maheshwaran)

How possible is it for ONE PERSON to commit all 8 murders, dig a large hole to hide dead bodies and dig another large enough ditch to bury the bicycles while all others stood watching – even the Supreme Court admits this was ‘highly improbable’? If so, is it fair to release all others and pass all blame to one man?

The President’s powers to pardon comes with a process that passes through the Attorney General, the Minister of Justice and thereafter to the President. Therefore, all those barking should first read Article 34(1) of the Constitution before howling. The howlers should ideally question the system that has actually failed Sergeant Sunil Ratnayake instead of demanding his death!