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Don’t fuse truth seeking with criminal justice, reconciliation: Craig Scott

[TamilNet, Sunday, 13 February 2011 11:05 No Comment]

In a paper published recently by Osgoode Hall Law School, York University of Canada on The Transnationalization of truth: A Meditation on Sri Lanka and Honduras, Craig Scott, Professor of Law, said “not to fuse truth-seeking processes with either criminal justice or reconciliation processes with special reference to the Sri Lanka context.” Meanwhile, commenting on the concerted efforts of some sitting and former US diplomats to save the Rajapaksa regime and the unitary character of the genocidal state of Sri Lanka, through vague solutions about which they themselves are not clear, and through continued ‘counterinsurgency approaches of ‘terrorising and tiring’ Eezham Tamils, the TamilNet political commentator in Colombo said that ‘pragmatic’ changes should first come from the US in recognizing the nation of Eezham Tamils in the island.

Further observations of the commentator:

The argument that the Rajapakse Government will not allow any investigations to take place and therefore the pragmatic way is to ‘help’ Rajapakse to ‘do the right thing’, is the fundamental premises that encourages Rajapaksa for further genocide.

Some Tamil elements planted by outside powers in the island as well as hijacked by them in the diaspora are already working on these lines, but as recent sentiments privately and publicly expressed by them indicate that it is they who got actually tired by the futility of achieving anything through working with Rajapaksa, or expecting anything positive from the Indo-US approach as it is now.

From the way some of the involved diplomats and agencies repeatedly stress on the war-weariness, fear and tiredness of Eezham Tamils, without taking any effort to come out with remedies for them, but at the same time basing on them for a psychological campaign in making Tamils to accept a hoodwink solution, raises questions whether all are in the game, wonder many Eezham Tamil political activists.

As high levels of SL government officials and military commanders will likely be implicated in any war crimes investigations, Rajapakse Government is not likely to allow any probes, said former US State Department official Donald Camp this week. But as high levels of international establishments could also be implicated, they are trying to save Rajapaksa regime and continue to silence Eezham Tamils, is what the diaspora political observers feel.

Vague phrases such as ‘decentralization of powers’ or ‘devolution of powers’ are outdated in the present context. To come out of the vicious situation, and to absolve themselves of the international nature of the crimes, the powers have to approach the reconciliation question from the opposite direction by recognizing the right to independence of the nation of Eezham Tamils, is a mounting opinion today.

Rajapaksa has taken an open stand that what he refused to Pirapaharan, he would not give to others. Unless a situation is facilitated that what Rajapaksa refuses is conceded by the Sinhala people, the reconciliation is not going to come. Such a situation could be facilitated only when the truth that all are sitting on comes out and an equal international platform is set for both the nations in the island.

Meanwhile, Professor Criag Scott, who in his paper has seen the fact that the crisis in the island is clearly of ethnic dimensions running into years, and the breakdown of the rule of law is of a wider framework, finally falls into the trap of envisaging solutions by the edification of the same state in the island.

“The priority goal should be to assist, prod, and pressure (in equal measure) Sri Lanka to get on the road to a state of affairs in which there is well-founded trust that the domestic rule of law is capable of and will end impunity on a forward-looking basis,” (…) so that every one could revisit the crimes “over time,” he argues.

“Criminal law justice or truth-seeking refracted through criminal law justice arguably should not be the priority in the Sri Lankan context for the immediate future”, he argues further with an apology “This all seems rather defeatist, I realize many of you may be thinking. Indeed I acknowledge that I am to some extent in a thinking-out-loud mode here and not fully persuaded by my own line of thinking.”

There is not much difference between what Craig says and what the former US State Department official Donald Camp says, except that Craig in his paper chooses to attack the US administration.

Craig Scott Craig argues for a truth-determining international commission without prosecution function and his transnationalization stops at that.

A question that arises here is whether prosecution is discouraged because there is only one side left with to face the punishment.

The crisis in the island is beyond academic exercises on the merits and demerits of trasnationalization of legal procedures.

The present truth and reality are that while the procedures take place “over time” as Craig suggests, the Sinhala state of Rajapaksa will work overtime to exterminate the identity of a nation, and the academics will be left with the work of only “revisiting”. Rajapaksa government has already started working at it. Seeking truth becomes meaningless if it ignores the realities of the national question in the island and tries to look at it through the prism of the state of Sri Lanka.

An international commission, more than for the war crimes, is needed for enquiring into the decades-old national question in the island and to come out with international justice to it.

Desmond Tutu and Lakhdar Brahimi had written about “obligations on the Tamil community within and outside Sri Lanka” and argued that “they also have to find the courage to admit the crimes of the LTTE committed in their name,” which move will “help provide the platform for honest negotiation between the government and credible, independent representatives of Tamils and Muslims, Craig said in the paper.

He also came out with his own additions:

“ I would go further and say that, from a transnationalized perspective on truth, the bright lines of a border on a map should not dictate the chain of causation and responsibility that is relevant to knowing a reasonably fulsome truth.”

“Depending on the transnational context, and depending on the mandate, the conduct of external actors and their related responsibility may well need to be brought into the picture, whether that means arms and intelligence suppliers of the government of Sri Lanka or organizations in the diaspora when it comes to the LTTE side of things,” Craig wrote.

Craig’s transnational jurisprudence has totally overlooked the fact that in the absence of internationally guaranteed parity and status quo of the nations in the island, the one facing genocide will have an unequal difficulty in the self-searching exercise.

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