Implementing 13A, India and International Commitments

| Dayan Jayatilleka

( June 22, 2013, Colombo, Sri Lanka Guardian) The exchange with Mr Mahindapala (‘What benefit is there in Dayan’s Deal in Geneva?’, HLD Mahindapala, Daily News, June 21, 2013) is useful not merely because it helps in setting straight the record of contemporary diplomatic history, but also because it is relevant, as the Daily News editorial (‘India in that Equation’, ibid) rightly implies, to the currently ongoing debates on the 13th amendment and Indo-Sri Lankan relations.

Let’s get the record straight. How and where did the commitment to implement the 13th amendment enter the picture and who made that commitment, to whom and when?

Was it during the war, when it may have been necessary to say and do whatever was needed to secure the conditions for our victory? Was the commitment made during the Indian elections then, when it may have been necessary to get our friends in Delhi off the electoral hook in Tamil Nadu?

The answer is NO, or rather, NOT ONLY during the war and the Indian elections, but far more solemnly and significantly, AFTER the war and that election, not only to India but also to the UN, and at the highest executive level, that of our Commander-in-Chief. The commitment was made by the same leader who had the courage and lucidity to say no to Miliband and Kouchner as well as to forestall the last ditch Western effort  at evacuation—an effort which shifted its goal posts from the evacuation of civilians to that of recommencing negotiations with the LTTE for a political solution.  

If HLD Mahindapala or anyone else however highly placed, thinks that the President was wrong to declare his “firm resolve” to implement the 13th amendment even after the war had been won, they should come out and say so, instead of blaming the Geneva 2009 resolution which accurately reflected the commitment made by the President to India and the UN only days before. For the record and as Prof Rajiv Wijesinha points out in a recent article  (‘Misrepresenting History to Attack Moderate Perspectives’, Prof Rajiva Wijesinha, Colombo Telegraph, June 18, 2013), the Geneva resolution, which followed not preceded the commitments made to India and the UN, was finalised by the entire Sri Lankan delegation present at the time, with the full knowledge and endorsement of the Presidential Secretariat and the Ministry of Foreign Affairs. This was authoritatively confirmed to a national audience recently by the then Minister of Foreign Affairs, Minister Bogollagma, in a Derana 360 interview.

The text of the Press Statement issued on May 21st 2009 after the top-level meeting with the Indian team and posted on the GoSL website reads: 

“Mr. M.K. Narayanan, National Security Advisor and Mr. S. Menon, Foreign Secretary of India visited Sri Lanka on 20 and 21 May. They called on His Excellency Mahinda Rajapaksa, President of Sri Lanka and met with senior officials, including Hon. Basil Rajapaksa, MP, Mr. Lalith Weeratunga, Secretary to the President and Defence Secretary, Mr. Gotabaya Rajapaksa. They also interacted with a number of political parties in Sri Lanka...Both sides also emphasized the urgent necessity of arriving at a lasting political settlement in Sri Lanka. To this, the Government of Sri Lanka indicated that it will proceed with implementation of the 13th Amendment. Further, the Government of Sri Lanka also intends to begin a broader dialogue with all parties, including the Tamil parties, in the new circumstances, for further enhancement of political arrangements to bring about lasting peace and reconciliation in Sri Lanka. (21 May 2009) 
Thus the commitment to ‘proceed with implementation of the 13th amendment’ was not contingent upon the statement that GoSL ‘...also intends to begin a broader dialogue with all parties, including Tamil parties...’ but was seen as preceding the ‘broader dialogue’.

Even more conclusive and significant is the joint statement with the UN Secretary-General. “Following is the joint statement by the Government of Sri Lanka and the United Nations at the conclusion of UN Secretary-General Ban Ki-moon’s visit to Sri Lanka on 23 May:

At the invitation of Mahinda Rajapaksa, President of Sri Lanka, the Secretary-General of the United Nations, Ban Ki-moon, paid a visit to Sri Lanka.  During the course of his visit, he held talks with the President, Foreign Minister as well as other senior leaders of Sri Lanka...President Rajapaksa and the Secretary-General agreed that addressing the aspirations and grievances of all communities and working towards a lasting political solution was fundamental to ensuring long-term socio-economic development.  The Secretary-General welcomed the assurance of the President of Sri Lanka contained in his statement in Parliament on 19 May 2009 that a national solution acceptable to all sections of people will be evolved.  President Rajapaksa expressed his firm resolve to proceed with the implementation of the 13th Amendment, as well as to begin a broader dialogue with all parties, including the Tamil parties in the new circumstances, to further enhance this process and to bring about lasting peace and development in Sri Lanka...Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations.  The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law.  The Government will take measures to address those grievances.” (May 23, 2009, my emphasis- DJ)

Thus the commitment contained in the joint communiqué with India two days before was no slip of the pen. The President’s “firm resolve to proceed with the implement the 13th amendment” was thus followed by the statement of intention to begin a broader dialogue with all parties including the Tamil parties in the new circumstances. The former was not dependent or conditional upon the latter.

The two documents were sent to us and had of course reached all delegations through their respective missions in Colombo and their capitals, as we were drafting our text in Geneva with our allies. The “firm resolve” of the President to “proceed with the implementation of the 13th amendment” reached the level of the United Nations, not because of our Geneva resolution but precisely because it was in the official communiqué released in New York and Colombo after President Rajapaksa made the pledge to no less than the UN Secretary General Ban Ki Moon himself! There was no question of non-inclusion of this commitment when Brazil, South Africa, India and Russia suggested it at the meetings of our ‘like-minded group’ (LMG) comprised of NAM plus BRICS, and did so with the fullest support of the Non Aligned Movement (with the Cuban Ambassador as Chair) and the complete concurrence of China. Contrary to Mr. Mahindapala’s rascally distortion, ‘the devolution for accountability trade-off’ was not a ‘deal’ cut by me ‘with India’. It lay at the heart of the strategy of our broad coalition consisting of the Non-Aligned movement and the BRICs. That broad coalition lay at the heart of our strategy.

I did have misgivings-- but it was about any mention of accountability, not about devolution, which I fully supported. The Secretary General of SCOPP, who was in Colombo during the negotiations on both texts and was a crucial part of our Geneva delegation in May 2009 (and was also present in March 2012) sets the record straight in a rebuttal of a ‘co-thinker’ of Mahindapala’s:  

“... [Shenali] is totally wrong to say that the 2009 vote in our favour in Geneva was because Dayan ‘secretly inserted a clause stating Sri Lanka would implement the 13th amendment’. This is of a piece with Tissa Jayatilaka’s claim that the victory in 2009 was a disaster because the draft contained pledges which have now come back to haunt us.

In both cases I fear that dislike of Dayan has led to falsification. I can also understand why neither will accept that the draft was discussed at length with the President’s Office before it was finalized...

In their haste to attack Dayan, both miss out on the fact that the particular clause to which Sri Lanka subscribed, which was used to build up a case against us, was signed by the President in Kandy, with Dayan nowhere near. I remember that, as I saw it, I said I thought it was inappropriately expressed, but I was assured by a leading light in the Foreign Ministry that it was not a problem. Dayan too, as he saw it, expressed surprise, whereas the rest of our delegation had not noticed the potential difficulties. The need of the hour was reconciliation and looking forward, so it was a mistake to dwell too much on the past.

Much later, when I told Palitha Kohona that he should have advised the President against accepting such a formulation, he told me that he had indeed done so, but the President was impatient at the delay in reaching an agreement, and authorized signing the document as it stood. However, I can see that that clause, for which the President was responsible, helped with a couple of votes to swell Dayan’s majority, and I believe we would have had no problems had the President acted promptly on his pledge and appointed the Lessons Learnt and Reconciliation Commission straight away.”

(‘Misrepresenting History to Attack Moderate Perspectives’, Prof Rajiva Wijesinha, Colombo Telegraph, June 18, 2013)

Unlike most critics of President Rajapaksa I do not think he was duplicitous when he made that commitment. I believe the delay in implementation and today’s difficulties are of a piece with the ones that detained President Jayewardene who would have legislated provincial devolution any time between 1984 and 1987, thereby pre-empting the Indian intervention, but felt unable to do so because of the hawks in his ranks, most notably national Security Minister Athulathmudali, whose aggressive myopia and inability to calculate the balance of forces, almost cost us our sovereignty.      

Let us conclude by reconstructing the scene with historical accuracy. Mr Mahindapala contrasts New York with Geneva, arguing that soft ball cricket was played in Geneva while the leather ball was used in New York. The reality by contrast, is that in New York, Sri Lanka is under the umbrella of two veto-wielding powers, Russia and China, while in Geneva, no one has a veto. Furthermore, in the last stages of the war, the rotating chair of the UN Security Council was with Russia and Vietnam, two firm allies of Sri Lanka. But is this merely my version? Let us turn to a source from the other side of the barricades as it were; the side that was hoping for a UN intervention, and see the diplomatic battlefield through his eyes.

In his book The Cage, Gordon Weiss focuses on the UN in two theatres, New York and Geneva. In Chapter 8 he makes clear the situation in New York: “As the situation unfolded, the positions of China, Russia and India became clear. There would be no resolution from the UN Security Council warning Sri Lanka to restrain its forces. China and Russia, with separatist movements of their own would veto any motion within the Council. India struck a pose of outward ambivalence, even as it discreetly encouraged the Sri Lankan onslaught, though urging it to limit civilian casualties. But of the veto-wielding ‘perm five’ in the Security Council, it was China...which was the largest stumbling block” (pp.139-140)  

“In the halls of the UN in New York, Mexico, which held one of the rotating Security Council seats, tried to have Sri Lanka formally placed on the agenda. While Western and democratic nations broadly lined up in support, it quickly became clear that China would block moves to have the council consider Sri Lanka’s actions....The possibility of an influential Security Council resolution remained distant...Sri Lanka had deftly played its China card and had trumped.” (pp 200-201)

Thus as Wise sees it, in New York, Sri Lanka was structurally safe. The scene and the stakes at the UN in Geneva 2009 are brought to life rather differently in the next chapter of Weiss’ volume: “On 27 May  at the Palais des Nations in Geneva, the UN High Commissioner for Human Rights, Navanetham Pillay, addressed the Human Rights Council and called for an international inquiry into the conduct of both parties to the war. While the EU and a brace of other countries formulated and then moved a resolution in support of Pillay’s call, a majority of countries on the council rejected it out of hand. Instead they adopted an alternative motion framed by Sri Lanka’s representatives praising the Sri Lankan government for its victory over the Tigers...” (p229)

It is in his concluding chapter that Weiss describes my role: “Dayan Jayatilleka, one of the most capable diplomats appointed by the Rajapaksa regime, had outmanoeuvred Western diplomats to help Sri Lanka escape censure from the UN Human Rights Council in Geneva. (p256-7)”

The morning after our vote, THE TIMES (London) which had been running a crusade against Sri Lanka, which included Op-Ed pieces by David Miliband, summed up in the very caption of its report, the outcome and its significance, far better than Mahindapala’s pathetic attempts at revisionism: "Sri Lanka forces West to retreat over ‘war crimes’ with victory at UN"- The TIMES (London), May 28, 2009.

How does Geneva 2009 seem in cooler retrospect? In a piece significantly entitled‘Lessons to Learn from Geneva’ the international award-winning journalist and author Nirupama Subramanian made this observation in 2012 (when Sri Lanka was again the subject of a hostile resolution which was carried successfully at the UNHRC): "As Sri Lanka mulls over last month’s United Nations Human Rights Council resolution, it may look back with nostalgia at its 2009 triumph at Geneva. Then, barely a week after its victory over the LTTE, a group of western countries wanted a resolution passed against Sri Lanka for the civilian deaths and other alleged rights violations by the army during the last stages of the operation. With the blood on the battlefield not still dry, Sri Lanka managed to snatch victory from the jaws of diplomatic defeat, with a resolution that praised the government for its humane handling of civilians and asserted faith in its abilities to bring about reconciliation." (The Hindu, April 7th 2012)

Nirupama Subramanian’s article is preceded with the summary that “Had Sri Lanka taken steps to implement the 13th amendment, India may never have associated itself with the UNHCR resolution.” Which is true. India’s diplomatic support, then and now, is a necessary but not a sufficient condition of Sri Lanka’s diplomatic success and indeed safety. In and of itself it is insufficient, as votes on Myanmar demonstrated. Despite the support of Russia, China and India, Myanmar lost those votes. Thus even in May 2009, securing India’s support would not have done the job for us, but as the votes of March 2012 and 2013 show, without India, the job cannot be done either.  As Mervyn de Silva, whose 14th death anniversary falls this weekend, cautioned in a lecture at Marga Institute on ‘External Aspects of The Ethnic Issue’ in 1985, two years before the airdrop, the Accord, the IPKF and 13A, “Sri Lankan foreign policy must be centred on a non-hostile relationship with India”.