U.S. ‘Carrot & Stick’ policy on Sri Lanka imposed in ’02 & ’15
Posted on October 10th, 2015

By Daya Gamage – Asian Tribune Political Note

Washington, D.C. 10 October (Asiantribune.com):

Sri Lanka could not avoid the ‘Carrot & Stick’ policy of the United States in November 2002 during the then Ranil Wickremasinghe’s administration when it was forced to sign the globally controversial ICC Article 98 with the Super Power in exchange of economic and other benefits.

The international agreements mentioned in Article 98(2) of the Rome Statute during 2002 was referred to by several terms, including Article 98 agreements, bilateral immunity agreements (BIAs),impunity agreements, and bilateral non-surrender agreements. Starting in 2002, the United States began negotiating these agreements with individual countries – Sri Lanka was one – and had concluded one hundred such agreements by end of that year.

Countries that signed these agreements with the United States agreed not to surrender Americans, if they were in their territory, – who were charged or prosecuted as war criminals – to the jurisdiction of the International Criminal Court.

Ranil Wickremasinghe administration signed this agreement with the United States on 22 November 2002.

The benefits that were assured by the then Bush administration to Sri Lanka was enhanced economic cooperation, monetary assistance from IMF and IBRD in which the U.S. had 16% stakes, and total backing to the Norwegian-mediated peace talks with the Tamil Tigers assuring State Department’s number two official Deputy Secretary Richard Armitage’s ‘direct’ involvement in the peace process. Armitage was seen directly involved in the peace process during Mr. Wickremasinghe’s rule in 2002-04 although an American official of that high position never get involved in affairs of an insignificant Third World nation unless the U.S. had economic or national security interests.

The United States has again used its famous ‘Carrot & Stick’ policy in 2015 pledging Sri Lanka to free it from the (EU) GSP-Plus obstacles, provide economic assistance and enhanced cooperation in global forums if the latter assists the U.S. in it ‘Pivot To Asia’ policy to check Chinese expansion. The State Department also pledged to get the Office of UN High Commissioner for Human Rights to soften its stance on alleged war crimes and violation of IHL while softening its own position in Geneva.

This is of course under a more consolidated and authoritative Ranil Wickremasinghe regime than the first one in 2002.

Nevertheless, the Washington policymakers who had been severely influenced by the professional activists of the Tamil Diaspora for decades could not totally dilute the stance of the UNHCHR. It endeavored to create the impression within Sri Lanka that the investigation proposed by the UNHCHR was not ‘hybrid’ but a domestic mechanism. It is true that the ‘term’ ‘Hybrid’ was removed from Geneva documents (and US resolution) but the intervention of foreign elements in the war crime probe stays according to the 8 October (2015) official statement posted in the US State Department Web Site.

This is what has been posted in the state department web site:

Fact Sheet
Office of the Spokesperson
Washington, DC
October 8, 2015

The outcomes of the 30th Session of the UN Human Rights Council (HRC) in Geneva underscored the importance of robust U.S. engagement at the Council, where the United States continues to work with countries from all regions to address urgent human rights concerns.

Sri Lanka: The U.S.-led resolution, which Sri Lanka co-sponsored, highlights the Sri Lankan government’s efforts to advance respect for human rights and strengthen good governance since January 2015, encourages the reform of domestic laws to facilitate accountability for past crimes related to the Sri Lankan civil war, affirms the importance of the participation of foreign judges and prosecutors in domestic accountability mechanisms, and requests further reporting by the Office of the High Commissioner for Human Rights (OHCHR).

It was reported that the U.S. resolution – concurred by Sri Lanka – saved the Rajapaksas’ from the ‘electric chair’. But the above state department clarification does not give the impression that neither the Rajapaksas’ nor the military that defeated the Tamil Tigers ridding the nation from terrorism are spared.

The United States, under the George W. Bush-Dick Chaney administration, displayed its ‘Carrot & Stick’ policy to force one hundred-odd nations, all of them Third World under-developed or developing nations, to sign an agreement to save American citizens who are prosecuted or alleged for ‘Crimes Against Humanity’. This is while projecting itself champion of human rights using the policy of ‘Carrot & Stick’ to get wide range benefits.

In the year 2015, agreeing to the US resolution accepting the findings and proposals of the UNHCHR, Sri Lanka undoubtedly accrued certain economic gains from the West but also was made to believe that ‘this was not a hybrid mechanism’. Nevertheless, the 8 October 2015 State Department web site posting says otherwise.

This was not the fist occasion the United States blurred the vision of Third World nations to submission: It forced them -in 2002 – to agree to ‘protect’ American citizens engaged in America’s ‘Global War on Terror’ from prosecution and allegations of ‘Crimes Against Humanity’, war crimes under the Rome Statute that established the International Criminal Court (ICC).

The Obama administration confirmed this Bush-Chaney policy most recently in 2014.

The American Embassy (Colombo) classified diplomatic cable to Washington dated 28 October 2002 said the following about the negotiations for the Article 98 Agreement with Sri Lanka’s Ranil Wickremasinghe administration:

(Excerpts) Camp thanked Wickremesinghe for his government’s “political decision” to sign an ICC Article 98 agreement, and asked when Sri Lanka would be ready to sign. Wickremesinghe recalled that he had assured A/S Rocca in New York (during a meeting on the margins of the UNGA) that Sri Lanka would sign; Camp noted that many nations had already signed Article 98 agreements with us. Signing soon would win GSL valuable positive attention among Washington decision-makers; waiting too long could result in other countries stealing Sri Lanka’s thunder. Wickremesinghe assured Camp that he would push the MFA to sign soon. Camp raised Article 98 in a meeting with Foreign Minister Tyronne Fernando the following day, reiterating the same points he made to the PM. Fernando noted that the MFA legal division had proposed an additional paragraph for the agreement (ref B) that would make it easier for GSL to sign. The Ambassador expressed skepticism that the additional paragraph would be acceptable to Washington, saying that Washington had put a lot of work into the text of the agreement and that many other countries had signed it without modifications. The GSL remains committed at the political level to signing an Article 98 agreement, and DAS Camp’s visit did much to help push this forward. Post is confident that GSL will sign the kind of Article 98 agreement that we want; we are working to ensure that happens sooner rather than later. (End Excerpts)

‘Camp’ who met Prime Minister Ranil Wickremasinghe accompanied by the American Ambassador Ashley Wills was Donald Camp, deputy assistant secretary of state in Washington. It is interesting why Washington sent a very junior officer for these negotiations to Sri Lanka: Don Camp had two tours at the American Embassy in Colombo, first, in mid-1970s as junior labor/political officer and later, in late 1990s as the Chief of Political. He knew the terrain, the political atmosphere and principal players in the Kumaratunga-Wickremasinghe administration. The state department sent the correct person to ‘persuade’ or show the ‘Carrot & Stick’ to get Sri Lanka’s signature to this vital agreement.

In fact, when prime minister Wickremasinghe was in New York attending the UN General Assembly sessions, assistant secretary for South Asia of the State Department Christina Rocca, in the sideline, had met the former to canvass for his country’s concurrence.

The U.S. ‘Carrot & Stick’ policy was well depicted in another classified cable connected to the Latin American country Honduras. The cable says the Government of Honduras (GOH) recently signed the Article 98 agreement. Then it says:

(Begin Excerpts)The GOH recently signed an Article 98 agreement, despite pressure from other Latin American countries to decline. Honduras was the first Central American country to sign Article 98, and the Hondurans remain staunch supporters. Post believes that the GOH should receive a tangible sign of U.S. appreciation for signing the Article 98 agreement. At the recent USSOUTHCOM Security Assistance Conference (MILGP Commanders’ Conference), Brigadier General Vincent Brooks, Deputy Director, Pol Mil Affairs, WHEM, from Joint Staff J-5 stated that our new approach would be the “carrot and the stick”–in other words, the U.S. will help those countries that sign Article 98 agreements and cut aid to those that do not.The radar issue is the U.S.’s chance to demonstrate that we will assist countries that support us on Article 98.(End Excerpts)

USSOUTHCOM means the military command of the United States Southern Command which covers South American nations.

Article 98(2) of the Rome Statute that established the ICC is: The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for surrender.”

The ‘sending state’ meaning if an alleged (US) war criminal or prosecuted American citizen for Crimes Against Humanity was in the Sri Lankan territory, if Sri Lanka (the sending state) does not give the consent to surrender (because of an agreement with the US), the ICC (‘the Court may not proceed with a request for surrender’) is unable to seek custody of that person.

Sri Lanka in signing this Article 98(2) agreement with the United States in fact aided the latter to protect its own citizens who were accused or prosecuted for war crimes. US government has been seeking bilateral non-surrender agreements, or so-called Article 98” agreements, in an effort to shield US citizens from the jurisdiction of the then newly created International Criminal Court .

The agreement provided that current or former government officials, military and other personnel are not transferred to the jurisdiction of the ICC.

The US government’s Article 98” agreements have been constituted solely for the purpose of
providing individuals or groups of individuals with immunity from the ICC. Furthermore, the
agreements did not ensure that the US would investigate and, if necessary, prosecute alleged crimes. Therefore, the intent of the US bilateral immunity agreements was contrary to the overall purpose of the ICC, which was to ensure that genocide, crimes against humanity and war crimes be addressed either at the national level or by an international judicial body.

The US agreement signed with about one hundred-odd countries – which included Sri Lanka – had this clause:

“1. For purposes of this agreement, ‘persons’ are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the expressed consent of the first Party,-

(a) be surrendered or transferred by any means to the International Criminal Court for any purpose, or

(b) be surrendered or transferred by any means to any other entity or third country, for the purpose of surrender to or transfer to the International Criminal Court”.

Agreement regarding the surrender of persons to the International Criminal Court between the United States and Sri Lanka was Signed at Colombo, November 22, 2002; entered into force July 4, 2003.

The Agreement was signed by US Ambassador Ashley Will and Sri Lanka foreign minister Tyronne Fernando. The agreement is still in force and President Obama confirmed it in 2014.

– Asian Tribune –

One Response to “U.S. ‘Carrot & Stick’ policy on Sri Lanka imposed in ’02 & ’15”

  1. Dilrook Says:

    Daya Gamage has done some good research. Thank you very much. This is new learning for me which gives new insights into the true undercurrents behind the hybrid court madness, repeated UNHRC resolutions against Sri Lanka sponsored by the US and Sri Lanka’s quiet accession to those (despite loud public protests against them initially).

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