By Dayan Jayatilleka –

While it is relatively unimportant for me to defend myself against a critique by a hitherto unknown and probably pseudonymous writer, it is far more important that the record be set straight, not simply about Geneva – where Sri Lanka is seriously threatened by an international inquiry and a report due in September 2015—but about Sri Lanka’s contemporary history, including its diplomatic history. That history must not be permitted to be falsified, not least because it shows us who are, and who are not, our real friends are in the international arena. This is especially vital since our best friends are now being insulted by our new government.

This pseudonymous critique appears to target me, which it indeed does, but what is insidious is that it targets and strives to discredit a successful strategy of counter-hegemonic resistance and a particular way of being in the international arena which enables Sri Lanka to build the broadest defenses and protect its political independence and national sovereignty; its ability to determine its own destiny and its power of exclusive decision-making on matters as fundamental as war, peace and peace-building within its own legitimate national borders.

Let us commence by getting two things out of the way.

• Under President Rajapaksa, Sri Lanka never made any international commitment to set up any accountability mechanism, and is therefore not committed to any such thing.

In May 2009 the Foreign Minister at the time, Mr. Bogollagama and Foreign Secretary Kohona telephonically instructed me and our delegation to “stick strictly to the language of the joint statement on the issue of accountability”. The joint statement between UN Secretary General Ban Ki Moon and President Rajapaksa on May 23 2009, said, inter alia, that:

“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.”

Ambassador Palihakkara, then Permanent Representative in New York, was in Sri Lanka at the time of the statement assisting with the visit of the Secretary-General and was privy to its contents long before we received it in Geneva, after it was signed by both sides.

It is the UN Secretary General alone who uses the term “accountability process”. The joint statement does NOT say that “the Secretary General and the GoSL agreed on an accountability process…” The Government’s non-specific promise (in response to the Secretary General’s concerns) to “take measures to address those grievances” cannot be twisted to mean an agreement, still less a commitment, to set up an accountability mechanism of any sort. It is a masterpiece of diplomatic ambiguity. Indeed the LLRC could very well be said to fulfill the GoSL commitment. I have been a consistent critic of the previous Government’s failure to fully and speedily implement the LLRC’s recommendations, but that in no way justifies either the UNHRC mandated inquiry by the OHCHR or the new Sri Lankan government going beyond the LLRC’s recommendations with regard to accountability.

• The second issue that requires rebuttal upfront is that Sri Lanka was under serious threat in the UN in New York in 2009.

Not only does this fly in the face of published material, it would mean entertaining the absurd assumption that Russia and China would not have used their vetoes in defense of Sri Lanka! By contrast, in Geneva, there are no vetoes to protect anyone.

Don’t take my word for it. If any evidence were needed about our situation in New York, Gordon Weiss provides it in his book, The Cage:

“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.

The contrast with the UN Geneva is brought to life 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)” adding this evaluation in his notes: “Jayatilleka was the most lucid of the vocal Government of Sri Lanka representatives…” (p 330)

That having been dispensed with, the record must be set straight by tracing the truth. What does the record show?

The Backdrop to the 2009 Special Session

The backdrop of the special session of the UN Human Rights Council in 2009 on Sri Lanka was this: The thirty year-long Sri Lankan war was reaching its endgame and we were going to win; the Tigers were going to lose. 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 by 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 EU resolution that was planned for the Human Rights Council.

A Special Session of the sort that was held years later on Libya and Syria in the Human Rights Council was sought to be held on Sri Lanka. This required 16 signatures. The Sri Lankan team and its allies in the Non-Aligned Movement (NAM) and in the South Asian Association for Regional Cooperation (SAARC), managed to hold it back while the war was on. As Sri Lanka’s Permanent Representative to the UN in Geneva at the time, 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. Personally driven by David Miliband and Bernard Kouchner, “led from behind” (as the Wikileaks cable of May 9^th 2009 proves) by US Secretary of State Hillary Clinton, and carried on the wave of mass demonstrations in almost every Western capital by the Tamil Diaspora (including a self-immolation in front of the Palais de Nations), there was no possibility of preventing the issue coming up later, though delay it we did, buying precious time until the war was fought to a victorious finish by our armed forces.

That this is no self-aggrandising personal claim made by me, is proved by the critical observations of a Western scholar Professor David Keen of the LSE. Writing in Conflict, Security and Development he states that “The Sri Lankan government very astutely created the political space—both nationally and internationally—in which a ‘ruthless’ solution to the civil war became possible.” He proceeds to quote me on the closing weeks of the war, describing our effort in Geneva as “Colombo’s successful lobbying of the UN Human Rights Council…”

Professor Keen writes that “Strikingly the UN Human Rights Council rejected a draft statement that was critical of the Sri Lankan government and on 27^th May 2009 (after the mass killing and defeat of the LTTE) put out an alternative statement…” He observes “Colombo cleverly portrayed itself as standing up for national sovereignty, and standing up to the West …Asked in June 2009 about media allegations of abuses in the camps, Sri Lanka’s Permanent Representative to the UN in Geneva, Dr Dayan Jayatilleka replied […] anyone who has read Noam Chomsky on Kosovo will know the pernicious role played by sections of the Western media in artificially creating the impression of a humanitarian crisis which provided the smokescreen for intervention. These media you speak of are the very same that tried to convince the world that Iraq possessed weapons of mass destruction!”

So what really happened in those halls, rooms and corridors? Soon after the Special Session was announced by the Office of the UN High Commissioner for Human Rights, 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, co-sponsored by another 37 countries. Uruguay, which was originally a signatory to the request for the convening of the special session on Sri Lanka, voluntarily approached us to become a co-sponsor of the Sri Lankan draft resolution, having being satisfied with our document which had been drafted after intense consultations and negotiations with many delegations of the Human Rights Council, including at the mandatory open ended consultations required to be held as per resolution 5/1 of the UN HRC.

Negotiating a compromise

Did Sri Lanka have the option of a dignified compromise in Geneva in 2009, a compromise that could either have kept the EU resolution from being placed on the agenda or one that could have led to a consensus?

Negotiations between Sri Lanka and the EU-led West were conducted at our behest by a Quartet, comprising our main neighbours India and Pakistan, and the current and incoming Chairs of the Non Aligned Movement, Cuba and Egypt, together with Sri Lanka. The stance of the West even at last minute backstage talks, and more clearly and publicly, the amendment moved by Germany in the Council after formal session resumed (successfully forestalled by Cuba), clearly proved the impossibility of a compromise: the EU and its allies were dogmatically insistent that any reference to ‘sovereignty’ should be deleted from the text, that UN Human Rights High Commissioner should engage in a fact-finding mission to the war zone and report to the Council within six months, and that an international accountability mechanism was imperative.

The Quartet comprising of Ambassadors of India, Pakistan, Cuba and Egypt unanimously and decisively refused to accommodate those amendments, and I as SL’s PR, rejected such a sellout of the Sri Lankan armed forces and citizens, our hard fought and finally won victory over secessionist terrorism, and the long-standing principles of the NAM.

In a search for a synthesis of values, many amendments were added to our original draft containing only 17 paragraphs. The final resolutions that was adopted had 29 paragraphs   which included a number of the points contained in the EU draft resolution i.e. everything that was unobjectionable, that was progressive, that was generally liberal in the EU’s resolution.

All our strategic and tactical decisions were taken in a collective and collegiate manner, at consultations with our coalition, including crucially, NAM and the BRICs. Not a single decision was taken outside of and other than by our ‘united front’; not a move made without consultation with and concurrence of trained, experienced and accomplished senior diplomats of a diverse array of states who were in touch with their capitals –with Russia represented by a former Deputy Foreign Minister and China by the Ambassador who would go onto be the PR on the Security Council in New York and is currently Vice Foreign Minister in charge of UN Affairs and Human Rights.

Defense of Sovereignty

It was the defense of national and state sovereignty and the political independence of our countries, that enabled us to obtain the support that we did and to pre-emptively defeat the resolution against us.

Geneva 2009 was far from a defeat of the Tiger Diaspora alone. It was the defeat of a powerful bloc of forces: the foreign affairs apparatuses of the European Union (driven by several Western European states), the Western dominated international media, the amply endowed international NGOs, the pro-Tiger Tamil Diaspora, anti-Sri Lankan elements within the UN system, and an ideological Fifth Column embedded within Sri Lanka itself (which clearly lives on, as revealed by this piece of pseudonymous falsification of history).

Sri Lanka saw and heard hypocrisy at work in world affairs. It also saw and heard fairness, friendship and solidarity.

Getting the better of the opponent

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”. [Cable date 25 June 2009]

This is not a one-off assessment. 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 international award-winning journalist and author Nirupama Subramanian wrote in “The Hindu” 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)

Vanguard role in counter-hegemonic diplomacy

As earlier cited, there has also been a body of academic 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 says that 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 story as seen by critical observer-analysts. Perhaps most conclusive is the pithy headline in The Times (London) which had campaigned against Sri Lanka in the closing months of the war, running stories of possible war crimes, and impending carnage and catastrophe. On May 28^th 2009, the morning after the vote, The Times (London) headline was: “Sri Lanka forces West to retreat over ‘war crimes’ with victory at UN”. If the West had to “retreat” that was because the West was the diplomatic aggressor and had been diplomatically repulsed by Sri Lanka and the broad alliance it had constructed. Thus the question of whether Geneva 2009, during which I was proud to have served as Sri Lanka’s Ambassador/Permanent Representative, was Myth, Mistake or Model, is purely a rhetorical one, since the answer, going by the facts on public record and the evaluation of critical experts, is utterly unambiguous and unequivocal. Geneva 2009 was Sri Lanka’s diplomatic Thermopylae–except that Sri Lanka, unlike the 300 Spartans, actually won.