Setting the record straight on Geneva

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by Dr. DAYAN JAYATILLEKA


"…Sri Lanka’s military strategy has drawn attention and even inspired governments also fighting insurgencies and other armed groups to consider emulating it (e.g., Myanmar, Nigeria, Thailand and Turkey), but the more important impact is a diplomatic one. Sri Lanka’s discursive strategy could be perceived as a model by such governments, for it kept international pressure at bay for the greater part of the war and ensured an endorsement by the Human Rights Council right after the end of the war…"


(‘Protection in Peril: Counterterrorism Discourse and International Engagement in Sri Lanka in 2009’,Global Society, Journal of Interdisciplinary International Relations,Volume 30, 2016, Issue 1, Taylor & Francis UK)


I write not as an intervention in the current discussion on Geneva but to clarify and set the record straight concerning references— largely positive — in the Politics column by CA Chandraprema, to me and my performance as Sri Lanka’s Ambassador/Permanent Representative to the UN in Geneva in 2007-2009 in general and in May 2009 in particular.


Columnist Chandraprema has commended me and accorded me a fairly generous amount of space. However, there is an important inaccuracy in both fact and implication, which leads to an inaccurate conclusion. The columnist has assumed that the United States was not part of the equation—was not a player— during the events at the UN Human Rights Council in May 2009, and that it was only the EUspearheaded by the UK and Germany that Sri Lanka faced. He then goes on to write of the USA’s subsequent efforts (after my term) in the UNHRC on the Sri Lanka issue and concludes that the pressure on Sri Lanka was virtually irresistible given the change in the odds from 2009, implying that our defeat in the resolutions of 2012, 2013 and 2014 were well-nigh inevitable. He concludes that now that the US has withdrawn from the UNHRC and that the UK and EU are once again our opponents asin 2009, the approach we adopted in May 2009 could be applicable once more.


This is factually wrong on two counts and analytically wrong on yet another. Firstly, the hard evidence shows that the US was demonstrably in the game in 2009 and indeed earlier. (It was not a member of the UNHRC at the time, but nor was Sri Lanka.) Secondly, there have been many occasions in which the US has been defeated in votes at UN bodies including one in which I was present and a participant, and the US was far more committed at the highest levels than it was on the Sri Lanka issue in 2009: I refer to the entry of Palestine to UNESCO. Thirdly—and this at the analytical and strategic level—serious scholars who are hardly sympathetic to Sri Lanka’s performance in Geneva in 2009 and indeed decry our success on that occasion, have included the US in the list of those on the other side of the equation at the time, and see our victory as being of universal or general (albeit negative, from their standpoint) significance—not as one which happened because the US was absent and can therefore be relevant only under those specific and fairly exceptional circumstances.


The Wikileaks stash of cables show that on May 4, 2009, US Secretary of State Hillary Clinton instructed the US Mission in Geneva to obtain signatures and votes for the EU resolution and that Washington would help in the editing of the draft. She also said that a diplomatic victory for Sri Lanka was an outcome to be avoided. This showed that the US was "leading from behind". Had this succeeded our military offensive could not have been completed without going against a UN resolution.


"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 4th May 2009 from Secretary of State (United States)]


The background and context was that the US had indeed helped us weaken the LTTE militarily, but was unhappy with the prospect of a complete military defeat of the LTTE. The West wanted the final offensive to stop, for the Sri Lankan government to return to the negotiating table and work out a political solution. This was manifest not only in the efforts of British Foreign Secretary David Miliband, but more importantly in the joint statement issued in early 2009 by US Secretary of State Hillary Clinton and David Miliband and most important of all in President Barack Obama’s call from the White House lawn on May 12th 2009 which used the code words, "indiscriminate shelling…use of heavy weapons…humanitarian crisis…catastrophe". As Daily Telegraph caption "Barack Obama tells Sri Lanka to stop indiscriminate shelling" proves, the criticism was clearly aimed at the Sri Lankan Government and the armed forces. (May 13th 2009)


This was hardly a one-off involvement. An earlier cable dating back to 2008 leaked by Wikileaks registers the US perspective and involvement at the UNHRC on the Sri Lanka issue. The US Mission informed Washington of our line and stance, and how it was "further complicating our [the US] efforts to use that body to pressure Sri Lanka on its human rights record."


"…While this may in part reflect the personality of its ambassador in Geneva, Dayan Jayatilleka, it also reflects a strategy of appealing to NAM countries, to whom it argues implicitly (and probably explicitly, behind closed doors) that it is willing to stand up to the West, which is unfairly picking on it. That message resonates particularly strongly in the Human Rights Council, further complicating our efforts to use that body to pressure Sri Lanka on its human rights record." [Cable date 10 March 2008]


The US interest and involvement is further demonstrated by a cable conveying the assessment made to Susan Rice, Cabinet-ranked US Ambassador/Permanent Representative in the UN Security Council in New York, by UN 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 outmaneuvered the EU." [Cable date 25 June 2009]


The US role as stakeholder in the May 2009 vote is further confirmed by the cable, courtesy Wikileaks, which reports a conversation in Paris, between no less than the US Ambassador-at-large for War Crimes Issues, Clint Williamson, and senior officials of the French Foreign Ministry. 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 16 July 2009]


The very fact that Sri Lanka figured prominently in a discussion that the US Ambassador-at-large for War Crimes Issues had with the Official Representative for International Penal Tribunals of a Western ally, fellow Permanent member of the UN Security Council and NATO member, is an incontrovertible indication of the high stakes in Geneva at the Special Session in May 2009, and who was involved.


The substantive reason for Sri Lanka’s success in May 2009 has been analyzed in several essays in scholarly journals as "the battle of norms" in the UNHRC and not as an issue of the United States membership of the Councilor otherwise. In fact, of the many scholarly studies, not one mentions it as of any significance.


For instance, 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 & 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 program in 2006-7. In the study, he writes:


"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…The Sri Lankan conflict may be seen as the beginning of a new international consensus about conflict management, in which sovereignty and non-interference norms are reasserted, backed not only by Russia and China but also by democratic states such as Brazil." (Lewis: 2010, pp. 658-661)


A most interesting recent study was published as recently as 2016, seven years after the UNHRC battle in May 2009, in Global Society, Journal of Interdisciplinary International Relations, (Taylor & Francis),Volume 30, 2016,Issue 1, dedicated to the thematic subject of"Contesting and Shaping the Norms of Protection: The Evolution of a Responsibility to Protect". The article on Sri Lanka is entitled ‘Protection in Peril: Counterterrorism Discourse and International Engagement in Sri Lanka in 2009’ and is co-authored by Gerrit Kurtz of the Department of War Studies, King’s College, London, and Madhan Mohan Jaganathan who holds a PhD from the JNU, Delhi and teaches at its School of International Studies.


The study commences by drawing attention in its introduction to the academic research already done on the same issue and refers to the earlier David Lewis study.


"The final weeks of the offensive were marred by vigorous criticism from the West and the Tamil diaspora of the Sri Lankan military’s indiscriminate shelling of the "no-fire zone", where up to 300,000 civilians were held hostage by the LTTE. At the same time, China, Russia and the non-aligned movement pressed the United Nations Security Council to keep Sri Lanka off its official agenda and ensured a UN Human Rights Council majority that endorsed the government’s compliance with human rights:UN Human Rights Council, "Assistance to Sri Lanka in the Promotion and Protection of Human Rights" (UN Doc. A/HRC/RES/S-11/1, 27 May 2009). David Lewis, a former analyst at the International Crisis Group, portrays this outcome as "the beginning of a new international consensus about conflict management, in which sovereignty and non-interference norms are reasserted, backed not only by Russia and China but also by democratic states such as Brazil".


In this Global Society (2016) essay by Gerrit Kurtz and Madhan Mohan Jaganathan, the main pointis dramatically summarized and attention drawn to the exhaustive research, in the Introduction itself:


"…Sri Lanka’s military strategy has drawn attention and even inspired governments also fighting insurgencies and other armed groups to consider emulating it (e.g., Myanmar, Nigeria, Thailand and Turkey), but the more important impact is a diplomatic one. Sri Lanka’s discursive strategy could be perceived as a model by such governments, for it kept international pressure at bay for the greater part of the war and ensured an endorsement by the Human Rights Council right after the end of the war. The government’s rhetoric skillfully combined counterterrorism with protection and non-aligned references, which resulted in severely restricting the effectiveness of political pressure, particularly from European states, the United States and the UN.


…This study [is] based on the analysis of primary documents, secondary sources and in-person and telephone interviews with diplomats, expert observers and UN officials in London, Delhi, Chennai, Colombo, Geneva and New York. It consists of two main parts: a close description and analysis of the international engagement in 2009, and an assessment of this debate’s impact on the norms of protection and of the potential for normative erosion through the perception of Sri Lanka’s military and discursive strategy as a "model" for other insurgency situations."


The inclusion of the United States, in a study which was so extensively researched, must be noted. Had it been merely a battle between Sri Lanka and the EU led by Britain with the USA absent from the equation, and been a one-off affair relevant only to a situation in which the US was absent, it would not have been studied so widely. Certainly, when the studies were undertaken and published the US was very much in the picture and there was no way in which the scholars would know that President Trump would win the election and pull the US out of the UNHRC. The scholarly interest in the West was because of more general relevance, the research question being how Sri Lanka diplomatically escaped the R2P "net" at the UNHRC in 2009.


For three years after 2009, no resolution was brought against Sri Lanka. A US diplomat who went on to win a US State Department award for his diplomatic work in the field of Human Rights, Michael Honigstein, took the lead in Washington DC in drafting the 2012 US resolution on Sri Lanka. He was posted to Colombo as part of Ambassador Michelle Sison’s ‘A-team’. While posted to Colombo he was to confirm later at a meeting in Mirissa in 2013 at which the current Speaker Hon. Karu Jayasuriya, Governors Maithri Gunaratne and Keerthi Tennekoon and Presidential Advisor Shiral Laktilaka were present (though obviously not in their current capacities), as I was (as an invitee), that the US desisted from bringing any resolution against Sri Lanka in the immediately following years, because they feared the skills of the Sri Lankan diplomatic team in 2009. He congratulated me,and later invited me for his farewell from Colombo – on his way to Kabul—in 2015, at which he graciously mentioned me in his speech, even though I was just a retired ambassador then.


To return to columnist Chandraprema’s point about the near-impossibility of a small state like Sri Lanka defeating a resolution introduced in a UN body by the USA with its enormous capacity for exerting pressure, this too flies in the face of facts. Not only has Cuba defeated the USA 25 years running at the UNGA in New York with the annual resolution against the economic embargo, often by a three-digit to single-digit majority, this pessimism is also contradicted by my first-hand experience. While serving in France as Ambassador and Permanent Delegate to UNESCO, I was present throughout the process and cast Sri Lanka’s vote on an issue that President Obama himself had taken a stand against and the US Congress had threatened a huge (60%) budget cut. The Palestinians, who had a Mission of two DPLs (one was the respected intellectual, PLO Ambassador Elias Anbar), together with their partners, built a coalition which beat the diplomacy of the mighty USA which deployed none other than Secretary of State Hillary Clinton who flew over to Paris to lobby UNESCO against the entry of Palestine as a member and sternly warn us all about the drastic Budget cut—which, I might add, was actually implemented! As (ex) Ministers Tissa Vitarana and Jagath Balasuriya who were there at the time would attest, Palestine and its partners secured more votes than the two-thirds needed for entry!


 
 
 
 
 
 
 
 
 
 
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