By Dayan Jayatilleka –

Let’s see what an independent and authoritative source has to say about May 2009 Geneva and the role of Sri Lanka’s Ambassador/Permanent Representative at the time. In its 8^th-14^th August 2009 issue,  the prestigious journal The Economist (London) referred to “…Dayan Jayatilleka, Sri Lanka’s Ambassador to Geneva, who warded off the threatened UN war-crimes probe in May [2009]…” (‘Sri Lanka after the war: Behind the Rajapaksa Brothers’ Smiles’, p 43)

How does one identify successful diplomacy and who is to do so credibly and authoritatively? Wikileaks revelations of confidential cable traffic to Washington DC, threw a spotlight on a moment when the US, and in one case France, another Permanent member of the Security Council, regarded Sri Lanka as following “an effective” and even “a very effective diplomatic approach”, in challenging conditions.

Though newspapers had already published the Wikileaks cable disclosing that in April 2009, the UK Foreign Secretary David Miliband, spent 60% of his time on Sri Lanka due to the “very vocal Tamil Diaspora in the UK”, what was unknown at the time was that Hillary Clinton, the Secretary of State of the world’s sole superpower, had instructed its Mission in Geneva to throw its weight behind the move on Sri Lanka at the UN HRC 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 4th May 2009 from Secretary of State (United States)]

Those were the odds then; that was the combination that Sri Lanka was up against in May 2009. We entered the battle with an added disadvantage: we were no longer a member state of the UN HRC. Nominated by the Asian Group, I had been a Vice President of the Council in 2007-8, but we had lost the election held in the UNGA New York by 2009, a venue I was not allowed to attend as PRUN-Geneva, by the edict of the then Foreign Minister, which reversed a norm.

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 10th September 2007]

A Wikileaks cable registers the US concern at our strategy of a high visibility, assertively principled stance, actively building the broadest possible coalitions, issue-based and longer term, as well as holding seminar-type events on the HRC sidelines, fielding academics, professionals and officials of moderate, pluralist views.

“The GoSL holds numerous events during Council sessions to lay out its position, whereas critics of Sri Lanka’s record are less active. Discreetly encouraging NGOs critical of Sri Lanka to arrange side events could be useful. A member of the International Independent Group of Eminent Experts, possibly its (Indian) Chair, might also be invited to Geneva to discuss Sri Lanka’s human rights situation.” [Cable date 10th March 2008]

We returned to and refreshed our Non Aligned roots, while twinning Tri-continentalism with the rise of Asia and emergent multi-polarity in the world order. The US Mission informed Washington of the efficacy of our line and stance:

“As in the past, Sri Lanka’s delegation took a tough and often acerbic tone in its latest public relations campaign in Geneva. 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]

An important aspect of our pro-active stance was to regularly field members of our carefully chosen delegation, such as Professor Rajiva Wijesinha, Shirani Goonetilleke, Mohan Pieris PC and D-SGs Yasantha Kodagoda and Shavindra Fernando at side events organized by hostile NGOs. Our own events took a debate mode, to which all actors including NGOs and pro-LTTE representatives were invited. At our invitation, Amnesty International actually chaired one such event. This attitude of dynamic, open dialogic engagement was praised by the US mission:

“…They (NGOs) also organized several side-events. One panel, hosted by AI, HRW, and the International Commission of Jurists, included representatives from national human rights institutions but also a representative of the GoSL, Deputy Solicitor-General Shavindra Fernando, who presented the GoSL’s response to issues related to witness protection and the Constitutional Council. NOTE: Several of our interlocutors who were otherwise critical of Sri Lanka praised it for sending a representative to a session at which it knew it would come under criticism. Few other governments showed any willingness to do so.” [Cable date 7th July 2008]

Wikileaks show that NGO activity was high at the HRC:

“….NGOs were highly visible on the margins of the sessions of a number of countries, with Sri Lanka being perhaps the most notable. Activists, including several who had come from Sri Lanka for the occasion (in many cases after having come for the earlier working group sessions as well), were active in the corridors before and after the actual review.” [Cable date 7th July 2008]

In the face of this hyperactivity, our Geneva Mission adopted methods and tactics that eventually defeated the efforts of its adversaries.

“Meanwhile, Sri Lanka has continued to press its public relations campaign in Geneva even as the EU begins to consider either reintroducing a resolution condemning Colombo’s human rights policies or calling a special session of the Council on the issue…. … the GoSL is certain to continue pressing its case in Geneva, as it has been doing aggressively to date.” [Cable date 18 Jan 2008]

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 10 March 2008]

In May 2009, the EU finally managed to present the resolution that it had been nursing for so long, in the wake of a failed effort to table it before the end of Sri Lanka’s victorious war against the LTTE. Anticipating this move, we, together with a broad bloc of allies (NAM plus BRICS), had already prepared a counter resolution which was tabled and adopted by the now well-known majority vote of 29-12.

A considerably important cable conveys the assessment made to Susan Rice, 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…simply outmaneuvered the EU”.

“Pillay praised the very quiet and effective work of the U.S. Charge in Geneva in helping secure passage of the Sudan resolution. She contrasted this outcome with the result of the special session on Sri Lanka, where the EU was ineffectual, carrying out few if any demarches (this was confirmed to her by Ambassadors from India, Mexico and South Africa). Sri Lanka and its allies, meanwhile, had a draft resolution ready to go and simply outmaneuvered 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 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 what would have followed had we not prevailed in that battle. The Wikileaks treasure trove also shows that in 2009, veto wielding powers Russia and China (supported by non-Permanent member, Vietnam) determinedly protected Sri Lanka at the UN Security Council against pressure by the Western Permanent members, with legendary Foreign Minister Sergei Lavrov being especially articulate in our defence.

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). That it does so confirms that diplomacy was an important arena of struggle and contradicts the conception of diplomacy as mood setting Muzak for making nice.

Weiss focuses on the UN in two theatres, New York and Geneva. In an earlier chapter 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 in New York, Sri Lanka was structurally safe and in Weiss’ book, its diplomats in that theatre at that time, remain unnamed.

The UN Geneva is brought to life rather differently in 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)

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)

Here’s an observation about Geneva 2009, made recently by the international award-winning journalist and author Nirupama Subramanian: “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)

There has also been impeccably scholarly research and publication. The most interesting is a piece which helps advanced students of international relations understand the deeper dimension and wider ramifications—far wider than Sri Lanka—of the battles in UN forums including most notably the May 2009 Special session. This essay talks about a clash on norms which took place in the UN Human Rights Council over the Sri Lankan issue and that the Sri Lankan diplomats played a role of ‘norm entrepreneurs’.

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 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…”

“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)

So there we have it; that’s the reconstruction and evaluation by critical observer-analysts.

The backdrop of the special session of the UN Human Rights Council in 2009 was emotionally as highly charged as you can possibly imagine. The long Sri Lankan war was reaching its endgame, but what would that end-game be? There was a lot of pressure not only from the Tamil Diaspora communities from the émigrés but also the liberal humanitarian view that there would be a blood bath which had to be stopped by a humanitarian intervention. It took the formula of a ‘humanitarian pause’. Lakhdar Brahimi and Chris Patten had written a piece in the New York Times about the imminent “bloodbath on the beach”. The EU Parliament was pushing a resolution for a ‘humanitarian pause’ and the resumption of negotiations with the Tigers. This was the template for the resolution that was planned for the Human Rights Council.

A very serious special session of the sort that was held years later on Syria or Libya in the Human Rights Council was sought to be held. This required 16 signatures. The Sri Lankan team together with our friends and allies in the Non-Aligned Movement, in the South Asian Association for Regional Cooperation (SAARC), fought a bitter rearguard action to prevent the 16 signatures’ requisite for the holding of a special session and managed to hold it back while the war was on. I was fully conscious of what we were doing in fighting hard to hold back the 16 signatures from being obtained so that a special session could not be moved in which there could have been a UN mandated call for a ‘pause’ on what would be the final attack on the Tigers.

Shortly after that the war was over on the 18th-19th of May, the last signature was obtained. The EU was one signature short for 10 days and then it got that signature and then the session moved on at full speed. Instead of waiting for the EU resolution to be tabled and voted on, Sri Lanka together with the Non-Aligned Movement seized the initiative. We presented a resolution of our own. The special session was held on the 26-27 May 2009 and it went down to a vote. Because of the nature of the counter-resolution that we crafted together with the Non-Aligned Movement, we obtained almost a two-thirds majority. The sole superpower was unable to get as many votes for its resolution on Sri Lanka in 2012 and 2013 in Geneva. The US got 24 and 25, we got 29. That is a measure of our success in 2009.