18 July, 2019

Blog

The Controversial SOFA!

By Rusiripala Tennakoon –

Rusiripala Tennakoon

Prevailing squabble about a proposed status of forces agreement with the US has paved the way to bring out serious concerns and differences of opinion in the country regarding its propriety and acceptability. While there is no official announcement of such a step there are many ongoing activities positively suggestive of the government of Sri Lanka’s commitment towards such a move.

 Generally SOFAs deal with the manner in which US military forces would operate when they are in a foreign country under agreed terms between the two countries. There are a multitude of aspects covered and addressed under such agreements. SOFAs have no universal format. Each SOFA can differ from another in size, contents and the mutual interests covered. Provisions in such agreements include inter-alia, the specific understandings about, the freedom for the military personnel to freely move about in the receiving country, wearing of uniforms, carrying of arms and ammunition, exemption from customs and other regulatory requirements on fees, licenses and payment of taxes, use of country’s radio frequencies etc. etc.. But a more serious issue that is essentially required  to be addressed in SOFAs, despite the fact that it often leads to controversy and dissent, is the question as to which country should have the right to exercise judicial control over the visiting military personnel. In other words which country should exercise criminal and civil jurisdiction over the visiting military personnel during their stay in the receiving country. 

All these are directed towards providing of immunities to the arriving military and other perssonel.

US has concluded more than 100 agreements which are currently in force. Some SOFA s have been signed with countries US has previously entered into treaties. Eg. 26  NATO countries have signed SOFAs with US under a multi-lateral arrangement that exists among all NATO countries. In addition US has concluded SOFAs with 24  other countries associated with NATO under a program of partnership for Peace.

SOFAs are entered into with countries that have  previous military agreements  under special security arrangements  between US and a particular country.  As an example of this we can cite the US agreement with Japan following the security treaty that existed before between the two countries . SOFAs are also signed as stand alone agreements with many other countries in the form of  Executive   Agreements which include conditions and provisions specific to that particular country. In such instances the US  Department of Defense which identifies the need for such an agreement with the particular country, negotiate the terms of the agreement with that country. 

The need to place US military forces in a foreign country arises in the context of many special considerations. Most of the SOFAs are based on the understandings and authorities flowing from previous treaties or security commitments and assurances under US foreign policy. The sole-executive or stand- alone SOFAs may be due to reasons such as , 

a)to assist in the defense in the event of an attack upon one party to the SOFA; b)in pursuance of a pledge by the US to support the country if its security is threatened; 

c) to offer military support  to defend a country against internal or external threats; 

d)OR merely as a unilateral compliance under a declared policy statement. 

Under which- ever of these arrangements a SOFA needs to be negotiated as bi-lateral agreement which has to be tailored to the specific situation and more particularly with regard to the assertion of legal jurisdiction to the foreign personnel operating in that country.

The case under issue with Sri Lanka appears to be falling under  c) OR  d)  shown above as we do not have any previous treaties or agreements with US for our security. Then the invariable speculations that have arisen pose the question who initiated the process? Did Sri Lanka make a request or did US consider it essential to them due to some threat in their horizons hence approved by the Congress? 

If both these presumptions do not cover the situation then the only other plausibility for this move is the possible inclusion of a provision in the ACSA that has been signed in 2017 to the effect that it will be followed to a subsequent creation of a SOFA between US and Sri Lanka. Many surrounding dubious happenings associated with the ACSA of 2017 needs further scrutiny and scan to eliminate these ambiguities.

1. Why it was hurried and rushed even before finalizing the security concerns of SL defense forces?

2. Why did the ACSA 2017 swell into a 80+ pages document from the 9 page document it was before?

3. How is that some key SL officials associated in the matter afterwards get US official postings under employment terms with the US?

4. How did the 2019 January 24th , controversial transshipments take place utilizing our commercial airport (Katunayake) and the Colombo Port during the military exercises of the US 7th Fleet in operation then in the so called (newly christened) Indo- Pacific region? This has been publicly highlighted before.The contradictory statements made by the civil aviation authorities and the defense secretary regarding this event!

5. Above all what is the justification for the ACSA to remain coveted while the responsible characters continue to be tight-lipped about the matter?

6. Why did minister Kiriella conceal from his parliamentary colleagues the differences between the ACSAs before and the 80 page that was signed in 2017

All these lead but to the grave of a strong suspicious and buttoned up deal that the government has chosen to keep away from the very Public of this country who have elevated them  from no- where to the ivory towers they are in today!

Can The Government Keep The SOFA Too Under Cover? 

Reportedly last August, the American Embassy in Colombo has exchanged a diplomatic note with the Ministry of Foreign Affairs SL, requesting an acknowledgement of what has so far been discussed between the two countries. This undoubtedly leads to the fact that there have been on- going discussions on this matter. It is said that the note indicates that an acknowledgement by the MOF construes an understanding for a new SOFA. Many have interpreted this statement to mean that the Ministers mere acknowledgement shall translate the previous discussions into a binding agreement. Whatever his instructions are, Mr.Marapona is a Senior reputed lawyer in this country who will, irrespective of his political loyalties ,not take any steps to impugn his standing. That may be the reason why he has reportedly raised an important issue during his negotiations in Washington in May 16-18, 2019, stating that a new SOFA cannot be concluded according to the Laws of this country following the 1995 precedence. He has cited a very important reference to a SL legal enforcement titled, Diplomatic Privileges Act  No 9 of 1996.

The “third US Partnership dialogue” held in May ,2019,  in Washington with the participation of Sri Lanka Foreign Minister,Tilak Marapona is an important milestone in this episode causing  the reigning anxiety surrounding the issue. 

This has prompted us to take a look at this piece of legislature. While the Lawyers in this country , we  believe , will examine this in minute legal detail, a cursory glance by us indicate the following provisions highly relevant to the issue we are discussing.

This Act under section 5 shows;

5.Order to be placed before parliament

(1) Every order made under sections 2, 3 or 4 shall as soon as convenient  after its publication in the gazette be placed before Parliament for approval. Any Order which is not so approved shall be deemed to be rescinded from the date of its disapproval, but without prejudice to anything previously done thereunder.

(2) Where any Order is deemed to be rescinded by virtue of the operation of the provisions of subsection (1) of this section, notification of such rescission shall be published in the gazette.

These provisions , while bearing strong evidence of the fact that Sri Lanka has always respected transparency and public opinion to the highest possible extent {unlike under the present circumstances}, confirms that there are strict and stringent conditions under which the Diplomatic Immunities afforded to Diplomatic Missions under the Vienna Conventions could be extended to non-diplomatic sources according to International Laws.

  In the context of the proposed SOFA section 4 of this Act becomes highly relevant. Under Section 4 , it is stated inter-alia, that “where the GOSL has entered into an agreement with any inter-governmental or International Organization providing for the grant of any immunities and privileges, to the officers or agents or property of such organization,the Minister may by Order published in the Gazette,and to the extent necessary to give effect to the terms of such agreement, declare that such of the provisions of this Act are specified in such Order shall apply to such officers , agents and property, of such organizationas are,or is,specified in such Order,to such extent as specified therein,and upon the making of such order such, of the provisions of this Act as are specified therein shall mutatis mutandis,apply to such officers, agents and property…………”. 

This Act was to give effect to the Vienna Convention on Diplomatic Relations; to provide for the grant of immunities and privileges to the officers , agents and property of certain international organisations .

The Vienna Convention on Diplomatic Relations 1961 under sections 32,35, 36and 40 clearly specify the privileges and immunities to be admitted by the receiving state and how they are given effect to internationally.

Our Act passed in 1996 address certain relevant issues in this regard and has made it mandatory for the country’s parliament to be made aware of any extensions of these privileges to any one other than Diplomatic Personnel as there are other implications arising out of such extensions internationally.

Therefore SOFAs cannot be concluded as close door operations as far as this country is concerned. The transparency that is ensured under the Acts quoted above will have to be respected. And above all  the Minister of Foreign Affairs has an obligation to disclose to Parliament all the discourses and intercourses between US and Sri Lanka in this regard. 

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Latest comments

  • 7
    0

    This looks like a re- hash of what Sirasa keeps repeating daily.
    Strange that Mr. R had nothing to say on “bond scams” .

    • 1
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      What! You use sarcasm on Sirasa , and you then turn this around to an unrelated issue to blame Mr. Rusiripala ? (although bond-scam is one of the greatest tragedies in Lankan history)

      • 0
        0

        This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

        • 0
          0

          Nimal,
          Why so hard on Grandma T ?
          You know dementia patients should be treated with respect. Imagine what their bitter halves endure.

          • 0
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            OC,

            It wasnt about Ramona. It was about Mr Rusi and Dayan ……… I suppose the moderator has a soft corner for either or both. :))

            I know some people who went to U of Pits ……… hope the better half is not one of them!

      • 0
        0

        Ramona dear,
        “(although bond-scam is one of the greatest tragedies in Lankan history).”
        Please, please, stop playing this broken record. The AG himself now says that the loss is 600 million. Greatest tragedy my foot.

        • 0
          0

          Old Codger,
          *
          Besides the enormous losses (one that the Motherland can hardly sustain), is the cheap sell-out that is so very detrimental to our Island’s sovereignty.
          *
          (Is insulting others the only way you can debate with?)

          • 0
            0

            Ramona,
            Which loss is bigger, 600 million over THIRTY years or 14 BILLION in one year by SriLankan ? Even you should know the answer.

  • 4
    1

    Let the Yankees come.
    We have nothing to hide.
    Politicians will be worried that their corrupt deals will be bared – like purchase of a decrepit ship.
    And, the human rights violations, and the corrupt state organisations wasting our peoples’ wealth.
    And, the bogus religious asses spreading hate.

    • 4
      1

      J
      The problem is that there is a lot hidden about the Yankees.
      *
      Murderers like the Saudi Prince get off lightly.
      Israeli murders are ignored.
      What matters to US imperialism is WHOSE terrorist and violator of human rights one is.

    • 0
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      Justice is a Tamil who supported LTTE and he was holding a good position in Srilanka until he migrated t Canada. Now, he is trying his best to undermine chinkalam and win what they want.

  • 1
    0

    Unbelievable, what is happening! Why aren’t the citizens and armed forces arising and creating dissent and revolt against this?
    *
    One has to admit that the one person who is standing firm for the Motherland is Sirisena. True he took over from Rajapaksa in a devious sort of way, but let’s face it- Rajapaksas at the time, was going overboard with the China deal (although this time around more is known of the US-intent, and there will be more cautious dealings).
    *
    We need an alliance between these two leaders. We need to protect the Motherland from the usual US capitalistic-tactics:
    *
    1. The weakening of country-unity via forced country divisions
    *
    2. The forcing of greater regional conglomeration.
    *
    3. Culture and history in the dustbins of history, with country piled up with real garbage from places like Singapore and UK.
    *
    The only way SOFA can be of some use to the Mother-Country is if a patriots like Sirisena & Rajapaksas safeguard the Motherland.

    • 0
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      “Unbelievable, what is happening! Why aren’t the citizens and armed forces arising and creating dissent and revolt against this?”

      Yes, return home!

      Time to walk the talk, Ramona! :))

      Leave behind Therese and get Ramona home pronto.

      What would Lankans be if they were gifted with a little intelligence to realize there’s a thang called hypocrisy.

      • 0
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        Nimal Fernando:
        *
        There is obvious violation to the country law, and all you can do is keep sniggering? For a packet of money, do you want a place like the US to invade and decimate us? Haven’t you seen what they have done to other countries that have traitors to comply with them to up keep the value of their US dollar?
        *
        Sirisena tried to do the needful not to long ago. But with persons like you around we don’t seem to stand a chance with the US$$ over country honor and sovereignty.
        *
        Brave and patriotic people can come forward and work a better deal with the US. Unlike the ME places, we don’t have the oil wealth that can make an honorable deal with the US impossible. India has always seen us as a special island, shining with the light of Buddha. Their regard us with a special reverence , Tamil rebellion and all. Yes, they go by ancient and cultural divine codes, rather than quick cheap short-term monetary fixes.
        *
        Instead, we are shamefully lost in the Ranil-Mangala power-hunger game, of the total destruction of the sovereign rights to our ancient motherland.
        *
        (No, I am not of strong physical constitution or military strength. But I will appeal to my countrymen to have a coup to get rid of the traitors to our country sovereignty. I am brave enough to use my full name at the risk of scorn and possible retaliation)

        • 0
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          Oh! c’mon Ramona! …… Let Therese speak; she is more rational.

          “For a packet of money, do you want a place like the US to invade and decimate us?”

          Soooooo ye are in this vile US of A to hone ye morals, uh? ………. Who are we trying to fool? Really?

          Never seen one of Ali Baba’s 40 espousing morals! …….. Well, there’s always a first.


          Why do everyone who warns of US’s villainy ends up in the good ol’ US of A?

          Running with the hare and hunting with the hounds, uh? :)) ………. Ramona, Ramona …….. Careful, your slip is showing.

          If you want to fool ye self be my guest ………. but don’t expect others to buy into ye sanctimonious bull.

          • 0
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            NF:
            *
            Oh, USA is full of good morals, and is allowed to hone one’s morals as democratically as possible. But it is not the US per se, I am speaking about – it’s about the traitors in the Mother-Country who are disregarding the history, culture and sovereignty of the land for their own personal power, whilst showing the US the worst way to proceed with our land for maximum profits. If true patriots are voted asked about the situation and are voted in, they would convince this great land of the US to follow a different path. US would respect our land, even if the profits gleaned are not at maximum (it would still be a tidy amount).

            • 1
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              Corrections:

              Oh, USA is full of good morals, and ONE is allowed to hone one’s morals as democratically as possible.

              If true patriots ARE ASKED about the situation and are voted in, they would convince this great land of the US to follow a different path. US would respect our land, even if the profits gleaned are not at maximum (it would still be a tidy amount).

        • 0
          0

          BAAAAAAAD SIGNS OF PMS. OR IS IT SOMETHING WORSE ? Such pathetic anti-US hysterics. Wondered how well the Yuan could talk ! By the way, can anyone enlighten me as to the name of the last country where ” US hegemony’ has deprived the people and nation of sovereignty and HR..and religious freedom ? Invade and decimate ? Sorry, but I’ve lost track of the many countries where the US has done just that except where there were mass killers to be taken out along with their sycophantic followers. Not forgetting that had the former regime prevailed, the invasion of our freedoms and decimation in our lives would have continued unimpeded. Then it was considered ‘patriotic’ to kill off honourable journalists, principled and proud politicians, and drag war-winning generals like dogs along pavements to be forced to sleep on filthy mats on equally filthy floors ! This is called ‘honour and sovereignty” ? Sounds like some guttersnipe letting off stem. Go hide your face in their underclothes….that seems to be where you came from. With shameless, gutless people stooping so low to buttress filthy killers and rogues masquerading as patriots, it’s a wonder that we are still alive and able to fight for our dignity. Patriotism ? Sovereignty Do people really know what these words mean ? No wonder the evil prosper with so many idiots to feed their egos. People are confusing love for the motherland with the common admiration of the illiterate and primitive man’s baser self for the supremacy of the animal in human form.. and not for the human reaching towards divinity. It’s in a state of divinity that we can enshrine the absolutes of true sovereignty and patriotism on a bedrock of honour and a dignity that commands the respect of an illuminated culture.

  • 0
    0

    Let’s first look at Tilak services to country. Tilak is an AG forced to resign for working secretly with Deal in an effort to save Old Brother Prince and Nissanka in Avant Grande. The resigned Tilak then came to minister post through back door. Tilak then went to UNHRC and read a Statement saying that Lankawe will not be implementing the resolution 30/1. But another one has already signed 40/1 with Britain to extend the term by two year. This is the fraud guy named Tilak. Tilak went to Washington and agreed to sign the Sofa with Sec. Pompeo. But it was Ranil who refused to issue Visa for Sec. Pompeo to go to Lankawe. When everybody is aware of what is going inside the four walls Parliament, Author honoring Tilak and preaching about transparency is funny. In Lankawe nothing is Black and White. Though Mangala at the end won the title, but in Lankawe every Sinhala Buddhist politicians is the greatest liar. No truth has ever come out and there is no transparency.
    Author biggest concern is the transparency. He has raised few additional questions. It is not that there is no point in anybody trying to answer them because they are petty, they are unrelated to topic, the transparency of SOFA, but they are related to another contract, ACSA. ACSA was originally signed by Old Royals and renewed by this government, two years ago. There is no point, when the author is beating the dead snake again and again, others also getting involved in that.
    As matter of fact the essay didn’t point any country adversely affected by signing any levels of SOFA with US. Further essay did not bring out any problems with the Old Royals signed ACSA or even CBK signed SOFA. So the Transparency concern at this time has to be treated as superstitious concern.
    If Rapist Army rapes a Tamil, he is war hero, no case. But if tourist is hurt by American Army what is the situation?

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

  • 0
    0

    In political terms, what Sirisena may have done this week is to reverse the ‘internationalisation’ of Sri Lanka’s terrorism problem. Indeed, for tackling a local drug mafia, Sri Lanka doesn’t need the expertise of the US’ Indo-Pacific Command.
    This is just as well because in the downstream of the Easter Sunday attacks in April, Washington also began pushing hard for the signing of a Status of Forces Agreement (SOFA) with Sri Lanka, which Pentagon has traditionally demanded as the pre-requisite of establishment of military bases in foreign countries. (The SOFA establishes the rights and privileges of American personnel present in a host country in support of a larger security arrangement.)
    Unsurprisingly, the Sri Lankan opinion militated against the SOFA project and suspected its real intentions. A huge uproar followed in the Sri Lankan media. Without doubt, the SOFA became yet another template of the power struggle between the staunchly nationalistic Sirisena and the famously ‘pro-western’ prime minister Ranil Wickremesinghe.
    The net result is that the project which the US hoped to conclude in absolute secrecy, got derailed once the draft SOFA document under negotiation got somehow leaked to a Colombo newspaper.

  • 0
    0

    If Rapist Army rapes a Tamil, he is war hero, no case

    Malli-you-ran: did this happen to you.

    It looks you are very angry with the chinkalam govt.

    • 0
      0

      Softy,
      Am I the only Tamil? Rape is the only crime Rapist Army did or doing? I have reasons to run away by Rapist army. Standardization to 1983 my life was a torture in JR’s hell. I lost all my small properties in 1977 & 1983 in Colombo.

      Lankawe has a serious problem in balancing with international countries’, UN’s, UNHRC’s, in Law and order. We laymen can see it in two dimensions. Laws & Acts are not up to international standard. I do not meaning the faulty draft like 19A; But, the policy and the principle behind them. Just for MMDA alone, it was brought to bribe Muslims men and divide the country. Don Stephen started with Indian Pakistani citizenship act. From Standardization, Sinhala Only, 1972 constitution, removing S29 and Privy Council protection for Tamils in Soulbury constitution … to simple border making to district is also racism based. All election laws are to split and destroy minority Tamils. On the implementation side, keeping 2:1 Rapist Army in Mullaithivu is the prime example while hired ISIS bombing Tamil churches elsewhere in the country. No Tamil polices! From Kodeeswaran case through Raviraj, Vidya, to five boys kidnaping for ransom… all Tamil cases are decided by Sinhala Jury Only verdict.

      It is in that situation Sinhala Buddhist like author Tennakoon are going to view an American’s soldier’s mistake. American Soldiers will be prosecuted by one of most advanced legal system, based on ultra-modern principles & policies. This will far far far beyond to comprehend to an average Lankawe Sinhala Buddhist Tennakoon citizen. Some people see tattooing Buddha on their body is praying him. Sinhala Buddhists think it an insult to him. They arrest people wearing Ship Wheel prints as an assault to Asoka. How SOFA is is going to be bridged with 2500 year-old Aappa culture with 500 years modern Pizza culture? Essay missed to discuss that important part. That is what I tried to tell.

  • 2
    0

    NF:
    *
    There is obvious violation to the country law, and all you can do is keep sniggering? For a packet of money, do you want a place
    like the US to invade and decimate us? Haven’t you seen what they have done to other countries that have traitors to comply with them to up keep the value of their US dollar?
    *
    Sirisena tried to do the needful not to long ago. But with persons like you around we don’t seem to stand a chance with the US$$ over country honor and soverignity.
    *
    No. Brave and patriotic people can come forward and work a better deal with the US. Unlike the ME places, we don’t have the oil wealth that can make an honorable deal with the US impossible. India has always seen us as a special island, shining with the light of Buddha. Their regard us with a special reverance , Tamil rebellion and all. Yes, they go by ancient and cultural divine codes, rather than quick cheap short-term monetary fixes.
    *
    Instead, we are shamefully lost in the Ranil-Mangala power-hunger game, of the total destruction of the sovereign rights to our ancient motherland.
    *
    (No, I am not of strong physical constitution or military strength. But I will appeal to my countrymen to have a coup to get rid of the traitors to our country soverignity. I am brave enough to use my full name at the risk of scorn and possible retaliation)

  • 0
    0

    Sri Lanka is a Lawless country!
    There is no law and order.

    The judiciary is corrupt.
    The Parliament is loaded with uneducated morons
    The President is inept and incompetent!

    There is no separation of Church and State ( look at the thugs in robes running amok)

    So the three branches of the SL Government namely:
    The Executive (Presidency)
    The Judiciary
    The Legislature (the thugs in the parliament)

    are all worthless!

    So India, US or any other country can and will walk in whenever they please!

    When the country was being sold to the Chinese – where were you stupid idiots ?
    There was no cry of sovereignty!

    Modi did not come here twice in the last five years to boost our tourism!
    He said clearly, he will guard his national security (from the encroachment of China towards his southern border).
    He also said, he will build a bridge to SL -(presumably – to make his troops cross over)

    So Sovereignty – my foot!!

    First let’s get our house in order.

    Then let’s talk about Sovereignty and all the other good stuff!!

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