by Daya Gamage

President Ranil Wickremesinghe is currently endeavouring to implement the 13th Amendment of the Constitution, which could lead to the establishment of a federal structure, much to the delight of Washington policymakers.

US policy towards Sri Lanka’s ethnic conflict has long been guided by the comforting notion that Tamil self-government within a decentralised Sri Lankan state would satisfy the legitimate needs of that minority community and shield it from ‘Sinhalese oppression’.

Washington policymakers projected onto Sri Lanka their panacea for ethnic discord—federalism—without prescribing mechanisms to protect democracy in devolved jurisdictions and prevent them from being used as bases for renewed militancy.

Washington – advocating federalism since the early 1980s – concealed the fact that federalism can perpetuate inequality and inconsistent legal protections across the country. Most notoriously, U.S. federalism sanctioned systems of law and law enforcement that protected slavery, racial segregation, and minority disenfranchisement for nearly two centuries. Federalism also contributed to a separatist civil war that killed 750,000 combatants plus an estimated 50,000 civilians. The U.S. Civil War became inevitable when the federal government insisted that preserving the Union took priority over Southern states’ right to continue practicing slavery and that separatism was not a right under the political contract that created the nation.

Sri Lanka never engaged in a debate within itself to find out that in the US the sharing of governmental authority between the centre and the states still poses serious problems. In recent years, for example, more than a dozen Republican-led states refused to expand Medicaid under the Affordable Care Act, denying health-care coverage to many low- income families. During the Covid-19 pandemic, the national public health response was hobbled by disjointed and sometimes counterproductive policies followed by state governments, costing tens of thousands of avoidable deaths. Much to the detriment of American democracy, in the wake of the 2020 presidential election, some state governments devised policies to constrain voting and even to override the popular vote. Such abuses have led some scholars to conclude that American federalism is dysfunctional. And, those in Sri Lanka who advocate federal structure need to comprehend these factors.

Activating the 13th Amendment fully and devolution of power seems to have returned to the national agenda with President Wickremesinghe taking a lead role. He undertook a similar endeavour as the prime minister in 2001-2004 during the Bush Administration with its Secretary of State Gen. Colin Powell and his deputy Richard Armitage playing a significant role during the Norwegian-initiated peace talks.

Washington believed that the Tamil community (accounting for 12% of the Sri Lankan population) had fewer economic and employment opportunities when compared to the ‘advantaged’ 74% Sinhalese majority and it would benefit from a federal system.

Washington policymakers arrived at this determination way back in the 1980s, long before the signing of the infamous Indo-Sri Lanka Accord. That determination governed the mindset of the policymakers and lawmakers in the U.S. through 2009 and to date.

Classified 1984/1986 US Documents Advocating Federalism

In June 1984, the Directorate of Intelligence (CIA) and the State Department’s Near East and South Asia Bureau (NEA) jointly prepared a document called ‘Failure to Share Political Power with Minority Groups’. Declaring President Jayewardene’s commitment to his Sinhalese-Buddhist constituency at the height of the July 1983 communal riots, it said “by the general election of 1956 Sinhalese-dominated parties had gained control of the government and driven the small Tamil parties out of the mainstream political life.”

Another document dated September 02, 1986 and authored jointly by the CIA and the NEA noted that ‘northern insurgency’ had politicised Sri Lanka’s Sinhalese and Tamil communities. The ethnic rivalry is at the heart of the conflict, the document says, adding that the Tamils believe – with some adjustments – they need some devolution of power to their districts and that they are victims of political and economic discrimination, suggesting that Washington refrain from providing military assistance to the Sri Lanka administration, as it noted even in another document that Washington shouldn’t get involved in a battle between two ethnic communities.

These three documents laid the foundation for the subsequent structure of Washington’s foreign policy toward Sri Lanka all the way until the end of the separatist Eelam War IV in May 2009 and well beyond.

Washington sentiments

Washington sentiments were amply reflected in this 1984 (once) classified document. This June 1984 document had the most revealing sentiments that played a major role in subsequent years during Washington’s intervention in Sri Lanka’s national issues, one of which was the proposal for a federal system in Sri Lanka solely and exclusively focusing on minority Tamil issues.

Washington’s initial (1984) understanding was that a federal structure would extensively satisfy the Tamil demands. The document states, “Tamil demands probably would be satisfied by a federal structure that would guarantee Tamils control over security and economic development where they comprise the majority of the population”. This belief was notably expressed by State Department Foreign Service Officers (FSOs) at frequent intervals in subsequent years when Washington intervened in Sri Lankan national affairs; in keeping with this agenda the USAID in 2005, with active participation of top officials of the US Embassy in Colombo, continuously for three months, convened nationwide public seminars with the assistance of civil society groups underscoring the merits of federalism.

The June 1984 classified ‘intelligence assessment’ expressed fear that if Washington was seen associating with a regime that battles a minority group it could “damage the U.S. prestige in the region and in parts of the Third World and that highly politicised Tamil minority in Sri Lanka might even turn to the Soviet Union for support.” (It is with this rationale that Washington deeply engaged during the 2002-2004 peace talks that it believed could bring favourable acceptance in the international community). In 2023, President Wickremasinghe seems to be bringing back the scenario to which he was engaged in as prime minister in advocating the implementation of the 13th Amendment.

The June 1984 ‘Intelligence Assessment’ further declares “Tamil demands probably would be satisfied by a federal structure that would guarantee Tamils control over security and economic development where they comprise the majority of the population” – meaning the North-East region of Sri Lanka.

The document opined that Washington believed “the Tamils have become convinced that they should have an autonomous homeland with economic and security control.”

What the June 1984 document says about the United States refusal to extend military assistance to the (American-friendly) Jayewardene regime’s request to combat the LTTE terrorism and its total blocking of the supply of military gear to the subsequent Rajapaksa regime during (2006-2009) its military offensive against the separatist movement led to Washington’s strict belief that such military equipment could be used for “repressive measures against the Tamils.”, and that other avenues need to be found such as devolution of power and setting up a federal structure.

The following are from ‘Sri Lanka: The Challenge of Communal Violence’, a joint intelligence assessment by the Directorate of Intelligence (CIA) Office of Near Eastern and South Asia Bureau of the State Department. June 1984 Secret document subsequently declassified:

1.  President Jayewardene’s failure to deal with the demands of Sri Lanka’s Tamil minority – 18 percent of the population – has brought the Tamils to the brink of open insurrection. In our judgment, Jayewardene, through his political maneuvering since his election in 1977, has contributed to the deterioration of communal relations by failing to share political power with minority groups

2. Tamil demands probably would be satisfied by a federal structure that would guarantee Tamils control over security and economic development where they comprise the majority of the population.

3. The Tamils, according to Embassy and scholarly reports, have become convinced that they should have both an autonomous homeland and control over security forces and access to more economic development projects.

4. We believe the frustrations of the last year have convinced even moderate Tamils they must press for a separate homeland with the hope of achieving at least a federal relationship with Colombo.

Subsequent US Manipulation for a Federal System

In early 2012, under the auspices of the Office of the Under Secretary-General of the United Nations (Political Affairs) B. Lynn Pascoe, attended by many professionals that included President Barack Obama’s close confidante and information czar Prof. Cass Sustein and his wife Dr. Samantha Power, the U.S. President’s human rights-war crimes-genocide crusader in the National Security Council, to start a process of restructuring several developing Third World nations’ constitutional arrangements to promulgate federalism as an answer to ethnic minority grievances.

The Under-Secretary-General (Political) B. Lynn Pascoe was a retired career diplomat from the US State Department.

Since the early 2012-process commenced a number of closed-door meetings and seminars at which the partition of UN member states has been discussed. Most of the meetings have been held under the direction of the UN Interagency Framework for Coordination on Preventive Action (the Framework Team or FT). The control of the FT fell into the domain of the under-secretary-general of Political Affairs Jeffrey Feltman, who took over from Pascoe in June 2012.The UN slot in the Department of Political Affairs, for decades, has always been assigned to a retired American Foreign Service officer (FSO), and it is the second most influential position next to the Secretary-General.

When a former American FSO occupies the Number Two slot of the UN, the State Department has extensive leverage over the operation of the United Nations, and it has been seen that both branches – the Department of Political Affairs and the US State Department – work together to achieve common objectives. As much as the state department and its representative – US ambassador to UN- maintain jurisdiction over the Human Rights Commission in Geneva under internal UN arrangement, during this period, the Under-Secretary (Political) Jeffrey Feltman oversaw the functioning of UNHRC.

When the process commenced in 2012, Sri Lanka, apart from Nepal, was also a target for the identity federalism engineers. To promote a ‘serious devolution to the peripheral regions’ – whether one calls it federal structure or otherwise – Dr. Samantha Power, who initially attended the Framework Team in early 2012 with the UN Department of Political Affairs, travelled to Sri Lanka in November 2015. UN Under-Secretary-General (Political) Jeffrey Feltman travelled to Sri Lanka for talks in July 2017, during the Sirisena-Wickremesinghe administration.

Illegality of the Indo-Lanka Accord and 13th Amendment

First, there is a reasonable argument to be made that the bilateral accord – the Indo-Sri Lanka Accord of 1987 – that mandated the devolutionary restructuring of the Sri Lankan government was illegal from the very inception.

But the 13th Amendment was imposed on the country under duress rather than being legislated through democratic debate.

What is less debatable is that the Indian airdrop and intimidatory diplomatic communications from New Delhi to Colombo prior to the IPKF were violative of at least the spirit of Article 2(4) of the United Nations Charter. That UN Article enjoins all member states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.” Both the Security Council and the General Assembly have adopted numerous resolutions that contain implicit or explicit references to Article 2(4), condemning, deploring or expressing concern about acts of aggression or the launching of armed intervention. A number of resolutions have included calls for withdrawing troops from foreign territories.

In addition, Article 51 of the Vienna Convention on the Law of Treaties states that an “expression of a state’s consent to be bound by [a] treaty which has been procured by coercion of its representative through acts or threats directed against him shall be without legal effect.” Similarly, Article 52 of the same Convention provides that “a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.”

Some Indian commentators have argued that Sri Lanka cannot withdraw from the 1987 Accord—and by extension the Amendment—by reason of the Vienna Convention because neither Sri Lanka nor India are signatories to the Convention. The United States has never ratified the Vienna Convention, but its Department of State as early as 1971 acknowledged that the Convention constituted “the authoritative guide to current treaty law and practice,” even for non-parties. Despite being a non-signatory, the U.S. Government has frequently brought cases before the International Court of Justice (ICJ) based on alleged violations of the Vienna Convention. In short, neither India nor the USG has standing under international law to press Sri Lanka to honour commitments imposed on it illegally.

The Thirteenth Amendment was enacted in the Sri Lanka Constitution as a result of this illegal Indo-Sri Lanka Accord of 1987.

What has been outlined above is that Washington policymakers and lawmakers endeavoured from early 1980s to impose a federal structure on Sri Lanka, and current Ranil Wickremesinghe presidency is succumbing to US pressure. Further, Sri Lankan lawmakers need to be apprised of the illegal entry of the 1987 Indo-Lanka Accord and its by-product the 13th Amendment.

(The writer is a retired Foreign Service National Political Specialist of the U.S. Department

of State once accredited to the Political Section of the American Embassy in Colombo)