15th anniversary reflections: Sri Lanka’s diplomatic victory, Geneva, May 2009

By SANJA DE SILVA JAYATILLEKA

With Israel having been issued with a judicial order of the International Court of Justice (ICJ) on its operations in Rafah in Occupied Palestine following South Africa’s two interventions in the Hague to prevent what is seen as genocide in Palestine, Sri Lanka’s own experience in Geneva as its long war was coming to an end 15 years ago in 2009 comes to mind– especially the 11th Special Session at which Sri Lanka defeated allegations of war crimes against it through a vote on its own ‘pre-emptive counter-resolution’ at the UN Human Rights Council (UNHRC).

What has Israel got to do with Sri Lanka’s experience in Geneva at the end of the war? For one, Israel attempted to bring a resolution about Sri Lanka’s conduct of the war at the World Health Assembly (WHA) headquarters in Geneva in 2009 during the sessions at which then Health Minister Nimal Siripala de Silva was to assume the rotational Presidency of the Assembly. This was days before the 11th Special Session of the UNHRC on Sri Lanka and had it succeeded, it would have impacted negatively on Sri Lanka’s case. As it happened, that attempt failed as it didn’t gather adequate support at the Assembly to be brought before it. Minister Nimal Siripala de Silva was hailed as a returning hero at the Katunayake Airport.

After Sri Lanka won the vote at the UNHRC, Foreign Secretary Palitha Kohona phoned the Sri Lankan delegation still milling around in the hall, with a single question: “What did Israel say?” The answer was that its delegate spoke against Sri Lanka’s winning resolution, although not having a vote at the Council, Israel could not vote against it.

The most interesting aspect of the International Community’s responses to Israel’s war on Gaza is how it brings into relief a well-worn and effective foreign policy tool which has been successfully used for decades: deliberate and consciously deployed double-standards.

War Crimes

In 2009 in Geneva, the attempt by a coalition of Western nations was to bring charges of war crimes against Sri Lanka. They started the preparations well before the final operations had commenced. There was a draft resolution circulating at the UNHRC ready to be tabled on those lines in 2006. Yes, as the last war was beginning and three years before the final offensive.

The UN and its member states had been reeling from the failure to prevent the genocide in Rwanda in 1994. In 2005 the UN endorsed the doctrine of the Responsibility to Protect (R2P). This concept was used regularly and liberally in Geneva in the discourse of some Western states and the concerned non-governmental organizations with regard to Sri Lanka.

The United States ‘Ambassador for War Crimes’ Clint Williamson was overseeing the Sri Lanka file. Yes, there was one then. Is there one now, and if so, what does he/she say about Gaza? Wikileaks revealed Williamson as having lamented in discussions in June 2009 in Paris with his French counterpart Christiane Bernier, the failure of the Western attempt against Sri Lanka at the UNHRC in May.

If the West had obtained a UN mandate through a vote in Geneva, the pressure on Colombo to stop the war would have been tremendous, with non-compliance opening the road to the Hague.

Ukraine and Sri Lanka

Now consider the on-going wars in 2024. There is one fought between the Russian Federation and the Ukraine over ethnic Russian border regions and hugely complicated by larger geopolitical implications including understandings arrived at the highest levels between Western Powers and Russia regarding the West’s expansion of NATO after the USSR pulled its troops out of Eastern Germany facilitating the reunified Germany’s membership of NATO. Complex issues abound in this conflict.

There’s a visibly more tragic one being fought in Gaza, between a nuclear-armed Occupying state and a non-state formation engaging in asymmetric war, also engaging in terrorism as part of its arsenal. The visuals every night on TV is a reminder of bombed out cities in dystopian movies or black-and-white footage of the end of the 2nd World War.

The non-state actor regards their existential circumstances as legitimizing the resort to terrorist tactics. Terrorism by definition is carried out against uninvolved, unarmed civilians. The justification of terrorism is not an argument which finds sympathy in the majority of the UN member states even while a majority absolutely comprehends the horrendous conditions of the daily lives of Palestinians and are in support of their calls for an immediate ceasefire and independent statehood for Palestine.

Two weeks after a case was presented to the ICC regarding the Russia-Ukraine War, an order was issued for ceasefire and arrest of President Putin among others. As a result, President Putin could not attend the important BRICS summit held in South Africa (a signatory to the Rome Statute) last year, and addressed it virtually.

In support of the Ukrainian side, the EU and the US allocate tens of billions of dollars’ worth of weapons for use in the on-going war, in which they explicitly regard defeat of the Russian Federation and the victory of Ukraine as imperative.

Israel’s war on Gaza where on-going genocide is alleged, has resulted in indictments by the International Criminal Court (ICC) against Prime Minister Benjamin Netanyahu and some of his Cabinet colleagues as well as Hamas leaders. And yet, it is unlikely that Netanyahu will feel the need to attend virtually, the meeting scheduled for him in the United States.

While being accused of serious war crimes and cries against humanity, and through South Africa’s case at the ICJ, of genocide, in an on-going war, those accused are also granted their requests to the US and the West for billions in weapons for use in that very war.

I recall that the West refused to sell Sri Lanka weapons and, in some cases, to train our military in their institutions when Sri Lanka was similarly accused by its opponents. Even our closest neighbour was unable to be seen to accommodate requests by Foreign Minister Lakshman Kadirgamar for material help during the LTTE’s offensive on Jaffna in year 2000. Most of the equipment and training came most readily from Pakistan and China, outside of the western sphere of influence.

Calling out Hypocrisy

This hypocrisy extended to the diplomatic arena, where it thrives. While not called by its name, it is a well-honed mechanism which is camouflaged with much self-righteousness. It is also by calling out these double-standards that “Geneva-style diplomacy” (as Sri Lanka’s 2007-2009 diplomacy in Geneva was called by some of Colombo’s former senior career diplomats) won the day, much to the surprise of many including at the Foreign Ministry in Colombo.

Reflecting on Sri Lanka’s diplomatic victory 15 years ago in Geneva, one can now see at least one reason why that victory turned out to be unique, never to be repeated. Perhaps it is an overhang of years of colonialism, but it was generally considered best not to challenge other nations on their declared sincerity and principled stances on human rights, especially the West, even when their charges were directed against us and were misplaced. Even if one objected behind closed doors, hypocrisy was never to be called out openly, while Sri Lanka was constantly vilified as guilty of “system-wide” war crimes and crimes against humanity.

The argument went that “our markets” are in the West, and if we upset them, we could lose our biggest trading partners, never mind the wild allegations with their dire consequences for small nations like ours. The Sri Lankan foreign policy establishment’s stand was that the West was the repository of “civilized democratic values” and we are “civilized people” who are natural friends and allies with the West as opposed to those countries who support Sri Lanka staunchly and call out the hypocrisy of the West, including in our defence.

This servile cast of mind caused one Sri Lankan administration led by its PM and Foreign Minister to co-sponsor a resolution brought by the West, which envisaged hybrid courts containing foreign judges. Some are still proud of having done so and echo that rhetoric.

The 2009 UNHRC victory that prevented the wartime Sri Lankan political and military leaders of being indicted of war crimes was achieved because the Ambassador/Permanent Representative and the SL team in Geneva had the confidence to persuade the vast majority of members of the UNHRC, reminding them of our common experience at the hands of those who accused us, and the insincerity of those allegations. Thereby Sri Lanka managed to prevail in the arena where the West had held sway for decades.

That this achievement is hardly celebrated in this country except briefly in its immediate aftermath, does not reduce its relevance to those who are interested in international relations. It is by changing the game that one can prevail against a party that invented it; not by playing by its rules, but by improving them to be more equitable and consistent. That is why the Sri Lankan team in Geneva in 2009 have been called “norm entrepreneurs” in international scholarly literature on the subject of that victory.

It is also useful to note that the Foreign Ministry in Colombo never debriefed the Ambassador who led the effort in order to learn the lessons. However, the techniques and processes have been turned into a module in a diplomatic training institute in one respected country of the Global South and a leading European institution invited the then Ambassador to give a lecture on how the May 2009 victory was achieved, to post-graduate students in International Relations. Several studies have resulted in book chapters, books and even a PhD thesis by non-Sri Lankans.

Non-Aligned, Neutral, Multi-Aligned

The 2009 victory in Geneva was achieved also because of clarity. As Ambassador Dayan Jayatilleka (my spouse) who led the effort in Geneva used to say, we must know what we are, who we are and where we are. In 2009, we were clear that we had been a founder member of the largest coalition of states at the UN, the NAM, and respected members of it. We were located in the global South, and shared a narrative of the geopolitical history of the Third World.

Those who bury the NAM as irrelevant, even dead, must question why it hasn’t been disbanded. Even as the NAM enthusiastically agreed to present Sri Lanka’s resolution to the UNHRC in May 2009, giving it much more heft than if it were presented by a small island at the tip of India, our own Foreign Minister at the time was telling the Ambassador in Geneva to forget the NAM, it was broken in several places. The Western Ambassadors by contrast, ruefully said that they never thought that Sri Lanka’s Ambassador would be able to deploy the NAM so effectively. When it comes to a battle by big powers against a small state, the Global South is a game changer.

The term “neutral” relates to a time of war. It is not a grouping, it is a position taken, which is not guaranteed to be sustainable. How could it be a long-term foreign policy stance when one doesn’t know what it is neutral about and between which countries? Yet Sri Lanka proposed it a few years back as its official Foreign Policy, before deciding it wasn’t helping and therefore called it “neutral and nonaligned”.

The latest trend is “multi-aligned”. This is currently India’s stance. Some are keen to adopt it in Sri Lanka. They too say that “non-aligned” is old-fashioned, the trending ideas are different and we should claim to be multi-aligned.

This is yet another instance of forgetting what we are and where we are. India can say whatever they like because they are members of the Quad as well as of BRICS. Their size and position in the world including its economy ensure they are welcomed with as much warmth in Moscow as in Washington. They are successfully multi-aligned. Yet, they remain members of the coalition of states called the Non-aligned Movement.

The ‘M’ in NAM stands for Movement. It isn’t a position taken. It was a historical necessity in the evolution of the world order and has served its members well. It remains as a forum where agreement can be reached as a group, giving them the strength of numbers, with the necessary consensus often producing moderate positions in international relations. Whatever else we call ourselves, for a small island state at any time, but especially when we are in such trouble as now, it is best to understand what these terms mean before abandoning them through ignorance or servility.

Sri Lanka’s team in Geneva in 2009 used its non-aligned stance and status to present its case effectively and win the day. It had the knowledge, the savvy, the courage and the capacity to scan the world community, its balance of power, the foreign policy concepts in play including R2P, and understand their uneven applications. It called out the over-confident but unprepared hegemonic powers dazzled by their own propaganda. It played for Sri Lanka and its people, to assert its sovereign right to re-unify its territory. And by doing so, it was victorious.

The government of the day took this victory for granted. Though the victory in war unified the country and brough much needed peace, it failed to complete the unification of the people and adhere to its promises. The Ambassador who won the battle in Geneva for them wrote a book called Long War, Cold Peace. He had been recalled within six weeks of that unique victory by the President who sent him there.

The reason was never given, but was variously speculated as due to two reasons: his urging in the print media to keep the promises made at the UN and to India by the head of state, and secondly, as acceding to a request by Israel to remove him due to his intervention on the 2008 Gaza war at the UNHRC, urging Israel to desist from using white phosphorous and other methods that led to thousands of civilian deaths. This intervention too was with the express agreement of the President, who also headed the Palestine Solidarity Committee in Sri Lanka at the time.

Geneva 2009 remains an unsurpassed achievement at the UN for Sri Lanka. It also offers some lessons such as the need for clarity and courage in the practice of diplomacy, the global responsibility of all states to intervene to shape the discourse of international relations, and the benefits of coalition building with like-minded states, always guided by what’s best for this island of ours and its people.

[Sanja de Silva Jayatilleka is author of the book ‘Mission Impossible Geneva: Sri Lanka’s Counter-Hegemonic Asymmetric Diplomacy at the UN Human Rights Council’, Vijitha Yapa, Colombo, 2017.]