Nemo se tenetur: don’t hold your breath on Sri Lanka accountability

“Nemo tenetur se ipsum accusare”

There is a juridical principle that is described by the Latin form: “nemo se tenetur detergere (/se ipsum accusare”. The English equivalent is the right to silence. It is a norm dealing with the statements of a person under accusation: nobody expects that you surrender yourself. On the contrary it is always quite suspicious when someone gives himself to the police. You have two cases of self accusation: authentic confessions and mythomania. The latter is when you are seeking attention, inventing your culpability. Only the former is a true, self accusation. It happens when someone did commit a crime, but was under strong psychological stress and after realizing what happened, he regains full control of himself and assesses correctly his position as guilty. On all the other cases, you expect that someone tends to save himself. No judge is really looking for a confession: that’s why even torture was banned. The perpetrator of a crime is not a reliable source, hence you need to build around a system of evidence that will prove his culpability, without his direct admission.

18th Century English Judge Overwhelmed by Criminal Defendants

The English form states the condition of silence: if you are asked directly, you can stay mute, to prevent a formal self-accusation. But I’m intrigued by the Latin expression. “Detergere” means to clean. Therefore the expression has a broader application. The English form implicitly recognizes that the right to stay silent; but if he speaks, he should tell the truth.

The Latin one, instead, alludes to the fact that the accused is not a (complete) reliable source in anything that he says. Because it is a even too natural temptation to save yourself. Even subconsciously! The facts you decide to mention, in opposition to what you ignore, the words you use, the connection you’ll make, everything could be part of a strategy where you are in conflict of interest to reach the truth. You don’t to unmask the facts, you don’t want the clean, real version. You prefer facts as they benefit you. You can expect the accused one to bring the truth, the clean version of what happened.

Mullivaikal Massacre, 2009 Sri Lanka

Now, in Sri Lanka more than 40 000 people have been brutally massacred outside any possible legal framework. In the United Nations, in the USA, in the Europe, everybody recognizes that those people have been killed outside the justification of a war, because they were civilians. There is a responsibility attached to those deaths. In other words we have a crime.

If we have a crime, then someone is responsible for that. It’s not politics, it’s not diplomacy, it’s not Tamil nationalism: it’s logic!

It is pretty clear that the chain of command during the events of the IV Eelam War, must be seen as it follows: the military chief was general Fonseka, his immediate boss was Gotabaya Rajapaksa and ultimately he was responding to the presindent himself, Mahinda Rajapaksa. Either the chain of command has been respected or it was mutiny. The brothers Rajapaksa never complained, so they explicitly endorsed the operations of Fonseka. My conclusion is that the chain of command goes directly to president Rajapaksa. I’m not controversial: everybody thinks the same, the US ambassador, just to mention one. Quoting The Guardian, WikiLeaks cables: ‘Sri Lankan president responsible for massacre of Tamils’, 1st December 2010:

President Rajapaksa and General Fonseka

in a cable sent on the 15 january this year [2010]2 the US ambassador in Colombo, Patricia Butenis, said one of the reasons there was such little progress towards a genuine Sri Lankan inquiry into the killings was that the president and the former army commander, Sarath Fonseka, were largely responsible. “There are no examples we know of a regime undertaking wholesale investigations of its own troops or senior officials for war crimes while that regime or government remained in power,” Butenis noted.

I’m sorry if I’m stating the obvious, but when we are discussing the LLRC, the Lesson Learnt and Reconciliation Commission, appointed by the government, to me it is even too clear that as long as Mr Rajapaksa will be in office, there is not a single chance that he will accuse himself. Never ask an accused man whether he is guilty: it’s human nature to appoint a commission that will dodge facts indefinitely. The international community asked to implement at least what your commission recommended. And we needed a UN resolution for that. And now slowly, and with a welcome by the US (and India, I suppose), finally Rajapaksa will comply with his own version. Latin people would say that it is not the clean one.

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