IPKF’S Withdrawal: Correspondence between Premadasa and Rajiv Gandhi – Part II

ANNEXURE “H”
New Delhi
July 11, 1989

Dear Mr. President,
I have your letters of 30th June and 5th July.

I do not wish to enter into a debate on various interpretations of mutual obligations assumed by our two sovereign nations. These are quite clear. I also do not wish to go into the validity of assertions like the LTTE having resumed violence on 2nd August, 1987 whereas the arms surrender started and the amnesty letter was handed over by the Sri Lankan Government to the LTTE three days later. We should let facts speak for themselves.

There is an Agreement between our two countries. This Agreement is meant to preserve the unity and integrity of Sri Lanka and to ensure the safety, security and legitimate interests of the Tamils. Nearly a thousand Indian soldiers have made the supreme sacrifice in fulfilment of India’s obligations as a guarantor of this Agreement. Since the signing of the Agreement, not only have the Provincial Council elections been held, but also the Parliamentary and Presidential elections. The situation in the North-Eastern Province is far more settled and peaceful than elsewhere in Sri Lanka. Despite all this, the devolution package promised to the Tamils has not been implemented. These are incontrovertible facts.

Both of us agree that the IPKF should be withdrawn. Both of us agree that we had commenced the withdrawal even before you asked for it. A broad time frame for IPKF’s withdrawal had in fact been discussed. Discussions on finalising the details were proposed by your Foreign Minister at Harare only a few days prior to your unilateral announcement of 1st June.

I have repeatedly said that the IPKF’s withdrawal schedule should be worked out through joint consultations along with a simultaneous schedule for the implementation of the Indo-Sri Lanka Agreement. We are willing to resume discussions on, this subject at any time and place of your convenience. Your colleague, the Honourable Mr. Thondaman, who met me here, would have conveyed to you our desire for friendly relations and our willingness to resolve any misunderstandings through mutual consultations. If, however, discussions for this purpose are not acceptable to you, we will have to decide the details of IPKF’s withdrawal unilaterally consistent with our responsibilities and obligations under the Indo-Sri Lanka Agreement.

While I reiterate Government of India’s willingness to cooperate with your Government to resolve pending issues, I must emphasise to Your Excellency that India has traditionally been mindful of the sanctity of the Agreements it signs with other countries and of commitments solemnly undertaken under such Agreements. India will under no circumstances deviate from this policy affecting our concerns.

It has been our practice to maintain the confidentiality of official correspondence, particularly ‘between Heads of State or Government, unless otherwise agreed upon. However, the gist of your messages to me was more often than not made available to the media before they reached me. Now I find that all our recent correspondence has been officially made public by the Sri Lanka Government. I may thus be constrained to depart from tradition by authorising this communication being made public, after you receive it.

His Excellency
Mr. Ranasinghe Premadasa
President of the Democratic Socialist Republic of Sri Lanka
Colombo

ANNEXURE “I” 12th July 1989

Dear Prime Minister

I am in receipt of your letter of 11th July 1989 which was handed-to me by your Special-Envoy.I thank you for the courtesy of sending him to Sri Lanka in an attempt to resolve the issues regarding the withdrawal of the Indian Armed Forces.

I explained to your Special Envoy and his delegation my position with-regard to the withdrawal of the Indian Armed Forces from Sri Lanka. I informed them that the discussions can continue based on the four premises set out below.

Firstly, the Indian Armed Forces arrived in Sri Lanka as a peace keeping force to assist in restoring peace. They came at the request of the President of Sri Lanka and were under his command as the Commander in Chief of the Forces of Armed Forces. Their invitation was in terms of Item 6 of the Annexure to the Indo-Sri Lanka agreement which says “that an Indian Peace Keeping Contingent may be invited by the President of Sri Lanka to guarantee and enforce the cessation of hostilities if so required.” The fact that the president of Sri Lanka is the Commander in Chief of all Armed Forces in Sri Lanka has been recognised by the Government of India.

Secondly, the Agreement was between the Government of Sri Lanka and the Government of India. There were no other parties to the Agreement. In fact the LTTE protested that they were left out of the Agreement and in fact their leaders had been confined for a duration of time leading up to the signing of the Agreement.

Thirdly, the presence of the Indian Armed Forces and the devolution of powers to the Provincial Councils are totally unconnected. I have explained this to you at great length in my earlier communications. I have told your delegation that the devolution of power by the Sri Lanka Parliament is entirely an internal matter. No foreign agency can oversee the implementation of legislation enacted by or compel the Parliament of a sovereign State to enact any particular provision of law. In any case, as stated in my earlier letter of 30th June 1989 you would appreciate that devolution is essentially a long term process. There is neither any legal nor any other rational basis for the presence of any military force to ensure that the process of devolution is complete. It would therefore be incorrect and unrealistic to contend that the Indian Armed Forces were expected to remain in Sri Lanka till the process of devolution is completed.

Fourthly, the Government of India undertook not to permit Indian territory to be used for activities prejudicial to the unity, integrity and security of Sri Lanka. I was constrained to point out to your delegation that Mr Padmanabha and others who are campaigning to keep the Indian Armed Forces in Sri Lanka have not only been permitted to publicly express their intention of making a unilateral declaration of Eelam whilst being on Indian soil but also to publicise such declaration on Indian national television.

I explained further to them that the invitation extended to the Indian Armed Forces was based on assurances contained in the Agreement that the time frame required for cessation of hostilities was 48 hours from the signing of the Agreement and for the surrender of arms was 72 hours from the cessation of hostilities. You would also appreciate that the decision to invite an Indian peace Keeping Contingent was in the context of resolve that a solution to the ethnic problem should be through negotiation and not by the use of military force. As such, the invitation could not have been interpreted as being one for the Indian Peace Keeping Contingent to engage itself in the prolonged use of force.

The reassurance with which I noted the withdrawal of Indian force when I assumed office turned to disappointment when I observed that the withdrawal was not being effected as expeditiously as possible. After careful consideration I decided that the 31st July 1989 was the suitable deadline for the withdrawal of the Indian armed forces from Sri Lanka.

The President of Sri Lanka could under Article 2.16(c) of the Agreement obtain Indian military -assistance when he thinks such assistance is necessary. In my Election Manifesto I promised to solve the problem, not by the use of force but by a process of consultation, compromise and consensus. The people of this country endorsed this manifesto. The dialogue initiated under this mandate has already borne fruit. The LTTE once the most intractable of the militant groups has ceased hostilities not only against the Government, but against all the people of the North and the East and indeed against all the people of Sri Lanka. They have agreed to join the democratic process and are now committed to settling problems by negotiation. In this context continued military action by the Indian armed forces is not only unnecessary but also prejudicial to a settlement by discussion and negotiation.

Action by the Indian armed forces is also gravely prejudicial to a political settlement with the LTTE who assert their need to carry arms as long as they are being attacked by the Indian forces and other militant groups who reportedly, enjoy the support of the Indian forces. Further the very presence of the Indian armed forces in Sri Lanka has made it difficult for me to enter into any dialogue with other political groups. In the meantime, certain groups in other parts of the country are resorting to violent activity on account of what they claim to be the inability of the Government to ensure the withdrawal of the Indian armed forces. The continued presence of the Indian armed forces is driving these groups to escalating their violence to crisis proportions.

My officials will be holding discussions based on these basic premises. I shall be replying the other issues including the statement attributed to my Foreign Minister raised in your letter of 11th July 1989 at the conclusion of the discussions between your delegation and my officials.

Yours sincerely
PRESIDENT

ANNEXURE “J”
19 July 1989

Dear Prime Minister

Further to my letter of 12th July, 1989 I wish to clarify certain matters referred to in your letter of 11th July, 1989.I agree that we should not enter into a debate. The terms of the Agreement are clear. The events leading up to that Agreement and the subsequent developments are fresh in our minds.

In regard to the cessation of hostilities by the LTTE, it is a fact that the Indian Armed Forces in Sri Lanka had not been able, even after two years, to ensure such cessation and complete disarming the militants. At the time of the signing of the Agreement it was envisaged that this process would not take more than five days.

I also agree with your assertion that the Agreement involves the acceptance of mutual obligations by two sovereign and friendly nations. The objective of this Agreement was to resolve the ethnic problem and to end the violence that was a threat to the unity and territorial integrity of Sri Lanka. The Agreement also sought to ensure the physical security and safety not only of the Tamil ethnic community but of all communities inhabiting the Northern and Eastern Provinces.

I must thank you once again for the assistance provided by the Indian Forces in response to Sri Lanka’s request for military assistance to guarantee and enforce the cessation of hostilities. We are sad that over a thousand Indian lives have been lost.

Sri Lanka for her part has discharged all her obligations under the Agreement and in particular taken all effective and meaningful steps towards the devolution of power.Sri Lanka has amongst other things, amended the Constitution, enacted legislation necessary to establish Provincial Councils, temporarily merged the Northern and Eastern Provinces, implemented the Official Languages policy, held the Provincial Council Elections, set up the infrastructure and provided the personnel and finances necessary for effective functioning.

I wish to reiterate that I have at all times held the view that the problems of the Tamil linguistic groups in Sri Lanka should be resolved, not by the use of force but by the process of consultation, compromise and consensus.Firm in this belief, I, as the Presidential Candidate, incorporated in my manifesto a pledge to secure the withdrawal of the Indian Armed Forces as a necessary prelude to political negotiations and a durable settlement. I did so in October/November 1988. The people of Sri Lanka, by an overwhelming majority endorsed this principle, both at the Presidential and Parliamentary Elections.

The events of the past months have proved the wisdom of my approach. The LTTE once the most intractable of groups have now agreed to eschew violence and join the mainstream of political democracy.You state that “the situation in the North-Eastern Provinces is far more settled and peaceful than elsewhere in Sri Lanka.” If this be so, there would be a lesser need for offensive action by the armed forces in these areas.

Furthermore, the substantial grievance over which the other Provinces began fomenting unrest, is the continued presence of the Indian Armed Forces in Sri Lanka. As you are aware, the agitation commenced with the signing of the Agreement and continued to escalate due to the presence of the Indian Armed Forces. So that, which ever way it is looked at, the continued presence of the Indian Armed Forces is an obstacle to the restoration of peace and normalcy in Sri Lanka.

Whilst we are both agreed that the Indian Armed Forces in Sri Lanka should be withdrawn, I cannot, for the reasons more fully set out in the annex hereto, agree that the terms of the Agreement do, or can in law be interpreted to mean, that the withdrawal of the Indian Armed Forces is in any way linked with or preconditioned upon the implementation of the process of devolution, or for that matter, the performance of any other obligation cast upon Sri Lanka by the Agreement.

The continued presence of the Indian Armed Forces or the conduct of any operations by such forces within Sri Lankan territory, is conditional only upon the concurrence of the Sri Lanka Government. It would therefore be unlawful for the Government of India to continue to maintain her Armed Forces within Sri Lankan territory in the absence of such concurrence.

It would be incompatible with the sovereignty of a State to concede a right for any alien armed force to operate within its territory contrary to the wishes of the Head of State who is also the Commander-in-Chief of its forces – from whom such alien armed force is not taking orders.

You would also appreciate that any continued offensive action against a section of my people who have publicly announced a cessation of hostilities against the Government and all the people of Sri Lanka would amount to the unlawful taking of civilian lives.

As already intimated to you, with the recommencement of the withdrawal process it will be possible to set in motion consultations to accommodate any logistical constraints which may arise.You have stated that my Foreign Minister has discussed a broad time frame for the withdrawal of the IPKF. According to him the former Indian High Commissioner in Colombo had intimated that some of the IPKF would be withdrawn by 30th of June and the rest by 31st of December. It appears that this had been a tentative proposal made by your former High Commissioner and I must emphasise that we have not at any time agreed to such a time frame.

I continue to receive reports of the forcible conscription of young people in the Northern and Eastern Provinces and their training at the hands of the Indian Forces. Since I wrote to you on this matter on 30th June, the situation has been aggravated. There is now an exodus of young people from the Northern and the Eastern Provinces fleeing from this conscription. A sizeable number is being accommodated in camps in Colombo.

I am thankful for the assurance in your letter that India has traditionally been mindful of the sanctity of the principle of observing the obligations of Agreements entered into by India. I wholly endorse the principle that Agreements should be observed. In this regard I invite your attention to the express provision in the Indo-Sri Lanka Agreement that the provision of military assistance by the Government of India is “as and when requested” by the Government of Sri Lanka.

It should also be noted that the Agreement contemplates that the Indian Armed Forces will assist the Government of Sri Lanka and. not be operating on their own initiative.

However, if it is your view that the Agreement should be construed as creating an obligation for the Indian Armed Forces to remain in Sri Lankan territory without the concurrence and against the express wishes of the Sri Lanka Government, I as the President of an independent, sovereign Republic, would have no option but to treat the Agreement as being inimical to Sri Lanka’s sovereignty and national interests.

PRESIDENT

His Excellency Shri Rajiv Gandhi
Prime Minister of India Prime Minister’s Office New Delhi
India.

ANNEX

The entry into and the continued presence of Indian Armed Forces on Sri Lankan territory can be lawful only upon the express concurrence of the Government of Sri Lanka.

It is a peremptory norm of international law, that the presence of, or the conduct of operations by, any foreign armed force within the territory of a sovereign state, otherwise than with the express concurrence of the Government of that state amounts to an act of aggression. Such acts of aggression have not only been recognized as unlawful, but unequivocally condemned by the community of civilized nations. This principle has also been reiterated in several United Nations instruments.

In the Indo-Sri Lanka Agreement several acts of co-operation are obligated upon the Government of India. The provision of military assistance is one such act of co-operation.An examination of the structure of the Agreement makes it clear, that the Agreement contemplated implementation without the use of force, that the Government of India, agreed to underwrite and guarantee the acceptance of the Agreement by the militant groups, who would then cease hostilities and surrender their arms.

The Government of Sri Lanka undertook to confine its ‘Armed Forces to barracks and to grant an Amnesty to the militants who were in custody.The rendering of military assistance is governed by Article 2.16 (c) which clearly stipulates that the affording of military assistance is “as and when” requested by the Government of Sri Lanka.

This Article makes it clear beyond argument, that the basic provision of international law regarding the necessity of the concurrence of the government of the domestic state in the entry of foreign armed forces into its territory, has been recognized and observed.

With the release of the militants from custody and the confining of the Armed Forces to barracks by Sri Lanka, and the failure to disarm the militants or to ensure cessation of hostilities, there was resumption of the violence which necessitated the request t for Indian military Assistance. Accordingly the invitation to the Indian Armed Forces was, as unequivocally stated in clause 6 of the Annexure, “to guarantee and enforce the cessation of hostilities”.

Any attempt to” construe this invitation as providing a mandatory’ right for the Armed Forces so invited to “protect” minorities or to oversee the devolution of power would be an untenable construction of the Agreement.Such a construction would neither accord with the clear understanding stated in the Agree-sent nor with the peremptory norms of international law.