RIGHT OF REPLY:

SRI LANKA IN GENEVA: THE DEVOLUTION/ ACCOUNTABILITY TRADE-OFF

DR DAYAN JAYATILLEKA

My friend HLD Mahindapala is writing a book length diatribe on my latest book, Long War, Cold Peace (Vijitha Yapa, 2013). I have chosen not to respond as entering his discourse as contained and represented in his extended review, would be the intellectual equivalent of entering a Taliban held area of remote Afghanistan. However, in the public interest as well as in fairness to myself I have to set the record straight on his latest effusion which is a grotesque distortion of Sri Lanka at the UNHRC in Geneva in 2009, and my own role there.

What HLD Mahindapala fails to grasp is that Sri Lanka made a trade-off in Geneva in 2009: devolution for accountability. In so doing we bought ourselves three years of time and space. How the Sri Lankan authorities used that time and space is another question. The main threat was and still is one of an independent international inquiry on accountability for actions allegedly committed during the last stages of the war. The target was and is not only our country’s present leadership but its Armed Forces. We in Geneva at the time, set out to protect our Armed Forces and the moral legitimacy of our victory. I am proud of having played my part.

As for the strategy, tactics and dynamics of May 2009 and my own role in Geneva, it is best not to be detained either by my protestations or Mr Mahindapala’s strange indictment and look instead to more authoritative and independent sources.

The Economist (London) described by Karl Marx as “the most intelligent defender of capitalism” referred to in its August 6-8 , 2009 issue to “...Dayan Jayatilleka, Sri Lanka’s Ambassador to Geneva, who warded off the threatened UN war-crimes probe in May (2009)...”

Thanks to Wikileaks what is now known is that US Secretary of State instructed its Mission in Geneva to throw its weight behind the move on Sri Lanka at the UNHRC Special Sessions in 2009.

“Mission Geneva is requested to convey to the Czech Republic and other like-minded members of the HRC that the USG supports a special session on the human rights situation in Sri Lanka and related aspects of the humanitarian situation. Mission is further requested to provide assistance, as needed, to the Czech Republic in obtaining others, signatures to support holding this session…Mission is also instructed to engage with HRC members to negotiate a resolution as an outcome of this special session, if held.

Department believes a special session that does not result in a resolution would be hailed as a victory by the Government of Sri Lanka. Instructions for line edits to the resolution will be provided by Department upon review of a draft.” [Cable dated May 4, 2009 from Secretary of State (United States)]

Diplomatic approach

Wikileaks shows that as early as September 2007, just two months after I had taken over as Ambassador/PRUN, the Western Group, led by the UK, was revising and reactivating a resolution that had been hanging over Sri Lanka in the previous year, 2006 – a danger and challenge which I had inherited.

“….a UK Mission contact told us that work is only at an early stage on the text of a possible resolution, which would update one that the EU put forward in last year’s Council session.” [Cable dated September 10, 2007]

A US Mission cable described the effect of our strategy as follows:

“… There was general agreement that Sri Lanka, and in particular its outspoken ambassador here, were effectively playing off the West against less developed countries.”[Cable date March 10, 2008]

A considerably important cable conveys the assessment made to Susan Rice, until a few days ago the Cabinet-ranked US Ambassador/Permanent Representative in the Security Council, by Human Rights High Commissioner Navi Pillay, on the results of the Special Session on Sri Lanka. The assessment was that “Sri Lanka and its allies, meanwhile, had a draft resolution ready to go and simply outmanoeuvred the EU.” [Cable date 25 June 2009]

This is not a one-off assessment. The Wikileaks cables report a conversation in Paris, significantly between the US Ambassador-at-large for War Crimes Issues, Clint Williamson, and senior officials of the French Foreign Ministry (widely respected as the fount of modern European diplomatic tradition and practice). A cable from the US Embassy in Paris to Washington DC quotes France’s Official Representative for International Penal Tribunals, Christian Bernier, as saying that Sri Lanka was “very effective in its diplomatic approach in Geneva”:

“Bernier opined that the Sri Lankan government is “very effective” in its diplomatic approach in Geneva and said France is in an information-collection phase to obtain a more effective result in the HRC”. [Cable dated July 16, 2009]

Outside of purely partisan ethnic propaganda, the most serious negative account of Sri Lanka’s war and the conduct of the Sri Lankan state is the solidly researched, well written, intelligent and readable book, The Cage by Gordon Weiss. It contains an entire chapter, 30 pages long, on the international and diplomatic dimension of the conflict’s closing stages (Ch 9: The Watching World).

The UN Geneva is brought to life in Weiss’ volume: “On May 27 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)

UNHRC

In his concluding chapter 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.

He had also been one of the most trenchant advocates within the government for meaningful constitutional reform, including the devolution of power to the provinces (p256-7)”. In his Notes he makes this evaluation: “Jayatilleka was the most lucid of the vocal Government of Sri Lanka representatives...” (p 330)

Research scholar David Lewis presented a paper at the University of Edinburgh, entitled ‘The failure of a liberal peace: Sri Lanka’s counterinsurgency in global perspective’, and published in Conflict, Security and Development, 2010, Vol 10:5, pp 647-671. Lewis is Senior Research Fellow at the Centre for International Co-operation and Security in the Department of Peace Studies, University of Bradford, and headed the International Crisis Group’s Sri Lanka programme in 2006-7. In the study, he writes:

“Many of the battles over conflict-related norms between Sri Lanka and Europe took place in UN institutions, primarily the Human Rights Council (HRC)…it was Sri Lanka which generally had the best of these diplomatic battles...”

“Although this process of contestation reflects shifting power relations, and the increasing influence of China, Russia and other ‘Rising Powers’, it does not mean that small states are simply the passive recipients of norms created and contested by others. In fact, Sri Lankan diplomats have been active norm entrepreneurs in their own right, making significant efforts to develop alternative norms of conflict management, linking for example Chechnya and Sri Lanka in a discourse of state-centric peace enforcement. They have played a leading role in UN forums such as the UN HRC, where Sri Lankan delegates have helped ensure that the HRC has become an arena, not so much for the promotion of the liberal norms around which it was designed, but as a space in which such norms are contested, rejected or adapted in unexpected ways...”

“As a member of the UN HRC Sri Lanka has played an important role in asserting new, adapted norms opposing both secession and autonomy as possible elements in peace-building—trends that are convergent with views expressed by China, Russia and India…”

(Lewis: 2010, pp. 658-661)

So there we have it; that’s the story as seen by critical observer-analysts. It is entirely at variance with HLD Mahindapala’s grotesque version. We were defeated in Geneva in 2012 and 2013 and are on the defensive internationally because we did not fulfil our part of the devolution for accountability strategic trade-off. The more we retreat or delay on devolution, the more our critics advance on the all-important and dangerous front of accountability. The Tamil Eelamist Diaspora networks do not care about devolution; they scorn the 13th Amendment. They are focused on accountability. So are Susan Rice, the incoming National Security Advisor to President Obama, and Samantha Power, the Ambassador/Permanent Representative designate of the USA to the UN Security Council. India however, still focuses more on the 13th amendment. Can we fight on both fronts? Should we try? Which is the lesser danger and what is the more prudent compromise?

Navanetham Pillay
UNHRC meeting in Geneva