IMPLEMENTING 13A, INDIA AND INTERNATIONAL COMMITMENTS
Rejoinder to HLD Mahindapala:
DR DAYAN JAYATILLEKA
The exchange with Mr Mahindapala is useful not merely because it
helps in setting the record of contemporary diplomatic history, but also
because it is relevant, as the Daily News editorial 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
confirmed to a national audience recently by the then Minister of
Foreign Affairs, Minister Bogollagma, in a Derana 360 interview.
Socio-economic development
The text of the Press Statement issued on May 21, 2009 after the
top-level meeting with the Indian team and posted on the GoSL website
reads:
Ban Ki-moon |
Navanetham PillayWater resources
- the basis of life |
David Miliband |
“Mr. M.K. Narayanan, National Security Advisor and Mr. S. Menon,
Foreign Secretary of India visited Sri Lanka on May 20 and 21. 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.
Gotabhaya 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. (May 21,
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’.
United Nations
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 May 23:
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 May 19, 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 board 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 the13th 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.
LLRC
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)
Western countries
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 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)
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 7,2012)
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”.
UN building in New York |