By Tamara Kunanayakam,
former Ambassador/ Permanent Representative of Sri Lanka to the U.N. at Geneva

December 11, 2019, 6:06 pm

“If you know the enemy and know yourself,you need not fear the result of a hundred battles.” Sun Tzu, The Art War, 5th Century BC

The recent dramatic events involving the Swiss Embassy came as a surprise to most Sri Lankans. Just as the large majority was looking ahead to a new era with a President they had just elected, a non politician with a simple lifestyle, yet determined, who they believed would be capable of returning to their lives, a sense of security, peace, economic development, the shot came from a quarter they least expected. From a small country in the Alps known for its neutrality, chocolate, cheese and snow capped mountains.

The context

To understand events and their significance, all things must be placed in their context. On 16 November, CID Inspector Nishantha Silva decamped without official permission to Switzerland and obtained asylum in that country. Only a week before, the Yahapalana regime, installed and virtually administered by the US in particular, was badly defeated. The new President Gotabaya Rajapaksa received a clear mandate never to allow anyone to infringe upon the nation’s sovereignty or betray the country’s independence at the behest of any foreign power, to strengthen the domestic economy, and reject the infamous US-led Human Rights Council resolution 30/1 co-sponsored by the Yahapalana government.

The months preceding his election had seen widespread opposition and public anger against secret defense agreements negotiated or signed with the United States – MCC, ACSA and SOFA – that implied a surrender of sovereignty and military occupation of the entire island, the loss of land and strategic resources, privatisation of public services and institutions, a mass displacement of population, the entanglement of Sri Lanka in wars with friendly nations in the region, and the threat to peace and security.

‘Exfiltration’ of Chief Inspector Nishantha de Silva

Inspector Nishantha Silva is not a ‘Mr Nobody’. He was Head of the CID’s Organized Crimes Investigation Division tasked by the previous pro-Western Yahapalana regime to produce evidence, real or fabricated, against targeted political opponents and the armed forces for use in high profile criminal cases of particular interest to the West. Significantly, Silva was charged with investigations within the framework of the infamous US-led Human Rights Council resolution 30/1, with external actors directly involved, the purpose being to prepare case files for use in war crimes proceedings controlled by the US and its allies. His was the work begun by the Darusman Panel and continued by the Office of the High Commissioner for Human Rights (OHCHR). The entire exercise was part of the US efforts to militarily occupy the island nation, strategically located in the Indian Ocean, to advance its hegemonic agenda for a “Free and Open Indo Pacific” (FOIP), a sinister security system bringing together two distinct regions and Oceans in a “a networked security architecture” under US leadership “to fight and win” a war against China.

IP Silva was obviously decamping to escape justice in Sri Lanka hounded by allegations (and exposure) of fabricating evidence, false arrests, and forcing people to turn state witness to implicate Gotabaya Rajapaksa in particular. In a high profile case in which officers of the Sri Lankan Navy were accused of involvement in the disappearance of 11 persons, a case highlighted in the 2019 OHCHR report, the key prosecution witness made a special statement to the Colombo Fort Magistrate implicating IP Silva and another key witness for fabricating evidence.

The expeditious manner in which the Swiss authorities facilitated his surreptitious evacuation together with his entire family and the important means placed at his disposal – overnight visas issued on a weekend and asylum in Switzerland – smells of an exfiltration operation triggered by the massive electoral defeat of a pro-Western regime and the West’s need to protect “an asset in place,” a vital source of intelligence. The operation permitted Switzerland and Western allies, which have systematically been part of initiatives against Sri Lanka at the Human Rights Council, to gain control over highly sensitive, confidential and strategic information, including statements, records, personal files and finger prints of 1,500 intelligence officers.

The exfiltration must have been planned and organised in advance. Silva was not off on a skiing holiday in the Alps, he would not be returning to face disciplinary action for leaving the country without prior approval, a police inquiry on the manner he conducted investigations, court proceedings, possible imprisonment, and now, theft of highly sensitive and strategic information and its likely transfer to foreign governments for hostile intent.

‘War crimes’ proceedings in national courts?

It is likely the files thus exfiltrated are for use against Sri Lanka at the March sessions of the Human Rights Council. They may also be used, along with similarly questionable ‘evidence’ gathered by the Darusman Panel and OHCHR, in “war crimes” proceedings in national courts of one or more Western countries under the controversial universal jurisdiction doctrine whereby courts in one country may judge certain crimes committed outside its territory, regardless of the nationality or country of residence of the accused or the victim. Such use of national courts is on the rise with ad hoc international criminal tribunals and hybrid courts in discredit. National courts may be the West’s next best option for Sri Lanka, in view of its failure to impose hybrid courts on the country.

Switzerland is among the some 15 countries (including the US, UK, Canada, Netherlands, Belgium, Germany, Australia, and Israel) that have conducted investigations, initiated prosecutions and held trials based on universal jurisdiction or arrested and extradited persons to a third country for prosecution.

Intelligence-for-Evacuation swap

It may be assumed that the extraordinary speed in which the Swiss authorities evacuated IP Silva was in exchange for intelligence in his possession. Espionage may be defined as “the process of stealing information for a hostile intent from opponents, concerning strategic and national security issues, and other information considered confidential and of vital importance for a state”. It necessarily implies organisation, institutionalisation and leadership by an opponent government to achieve among other things, military or political objectives.

The Swiss intervention constitutes a violation of Sri Lanka’s sovereignty and the principle of non intervention laid down in the UN Charter, essential conditions for ensuring and developing friendly relations. The 1961 Vienna Convention on Diplomatic Relations, which sets the rules for facilitating the development of friendly relations, and the 1963 Vienna Convention on Consular Relations, stipulate that reporting by diplomatic missions must be in conformity with international law, which prohibits interference in the national affairs of the receiving state and requires that the rule concerning exhaustion of remedies in local courts is in no way affected.

The result has been a significant deterioration in the relations between the countries, incompatible with purposes of the United Nations, in particular that relating to developing “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”.

Swiss allegations of abduction of local embassy employee – a tall story grown taller

Swiss accusations of ‘abduction/detention’ of a local embassy employee, a Sri Lankan citizen, followed hot on the heels of their exfiltration of CI Silva only the day before.

What we have is a convoluted version from the Swiss authorities without facts or evidence, a tall story that has grown ever taller and more complicated in the telling resulting in generalised disbelief in the incident actually occurring. How credible is it, for instance, that the mobile phone of a local employee contained highly confidential information of strategic importance to Switzerland, more important than that stolen by IP Silva?

It is apparent that the Swiss authorities were in contact with the alleged victim throughout, with the Ambassador speaking to the authorities on her behalf. In all likelihood, she was kept on Embassy premises with no justification provided for holding a Sri Lankan citizen, a local employee not entitled to diplomatic immunity, incommunicado for two weeks.

Having demanded an investigation into the incident and claimed that the alleged victim’s health had so deteriorated warranting airlifting to Switzerland by air ambulance, the Embassy refused to accede to Sri Lanka’s requests to allow the alleged victim to make a complaint so that investigations may be conducted, denying access to a Sri Lankan citizen, even withholding her name. By its failure to cooperate with the host state, the Swiss authorities have obstructed the course of justice and Sri Lanka’s ability to fulfill its obligations. The re-appearance of the local employee on Monday, 9 Dec. cannot be attributed to any cooperation by the Swiss Embassy, but to a Court order preventing her from leaving the country until that date and requiring that she give a statement before then.

By refusing to cooperate with the authorities of the host State, the Swiss Embassy acted in a manner incompatible with the UN Charter-based duty to cooperate. The Vienna Convention on Diplomatic Relations stipulates that In carrying out the functions of the mission, diplomats from sending states are duty bound to respect the laws and regulations of the receiving state, the duty not to interfere in internal affairs, the duty not to misuse diplomatic premises for wrongful purpose, i.e, for purposes that are incompatible with the functions of the mission, and the duty not to affect in any way the rule concerning the exhaustion of remedies in the local courts, when applicable.

The only tangible facts available are those relating to the CID Inspector Nishantha Silva. The context and timing of the accusation of alleged ‘abduction / detention’ may serve multiple purposes, which, in the writer’s view, include :

(a) to discredit the newly elected President Gotabaya Rajapaksa against whom the Western media had already orchestrated a massive campaign based on prejudice and lies ;

(b) to add the case of alleged abduction to the documentation being gathered by OHCHR for use in a war crimes tribunal as evidence of intimidation by the new President and his Government. The OHCHR website has published the statements by the Swiss authorities, but none issued by Sri Lanka. The only other news item in this respect is a news report by the website Sri Lanka Brief, which links the alleged ‘abduction’ to IP Nishantha de Silva;

(c) as ‘fake target’ to coverup the ‘Silva exfiltration affair’ and turn the tables on Sri Lanka so that the ‘accused’ becomes Sri Lanka, not Switzerland;

(d) as a lure to send the new Government off on a wild goose chase allowing the West the time and space to prepare the offensive in Geneva, in March 2020; and,

(e) to keep the public entertained as the all but forgotten agreements with the US – MCC, SOFA, and ACSA – resurface from their temporary retreat.

Swiss– Sri Lanka relations, how friendly?

Contrary to widespread belief, Switzerland is not a neutral country, consistently siding with the US and the European Union in conflicts between the West and Global South.

In the United Nations, It forms part of the Western regional group and associates itself routinely with the US and European Union in sponsoring politically motivated resolutions, including against Sri Lanka. It was among the 17 mostly Western countries, including the US, that requested holding of the 2009 Special Session on Sri Lanka, which was announced on 19 May 2009, the final day of the war against the terrorist LTTE organisation. Other landmark resolutions it has co-sponsored that have gradually increased external interference in Sri Lanka, include the April 2013 resolution that for the first time requested an external entity, OHCHR, to submit a “comprehensive report” on Sri Lanka; the March 2014 resolution that authorised international monitoring and international investigations, also in the form of OHCHR, which extended their scope beyond human rights to “related crimes”; and the March 2015 resolution 30/1 that called for a hybrid court and comprehensive reform of the State, its laws and institutions.

Switzerland does not consider LTTE a criminal organisation, its members are permitted to freely conduct political and fundraising activities. Their involvement in money laundering is public knowledge, as is their practice of intimidation, extortion, blackmail, and physical violence against other Tamils. According to the Swiss Attorney General’s Office, nearly 60 million Swiss Francs were remitted to Sri Lanka between 1999 and May 2009. Recently, on 3 December, the Federal Supreme Court acquitted 12 persons accused of either belonging to a criminal organization, the LTTE, or of providing funds. The Court ruled that the Swiss Penal Code was not designed for organizations that committed terrorist acts in which the terror was not an end in itself, but pursued predominantly different goals. Recognising that LTTE had committed terrorist attacks, it held that its primary goal was rather to lead a conventional armed struggle, the quasi-state administration of territory and recognition of the independence of its ethnic community.

Swiss mainstream media, which has a broad European readership in German, French and Italian-speaking countries, has also consistently supported the LTTE’s separatist agenda. The candidacy of Gotabaya Rajapaksa for Presidency and his subsequent election saw an escalation of falsification ad infinitum of the conditions prevailing during the last phase of the war and accusations of war crimes.

Friendly relations and sovereign equality

A principal purpose of the United Nations is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, further defines the principles upon which international relations must be based. The rules for diplomatic relations that would contribute to the development of friendly relations among nations are laid down in the Vienna Convention on Diplomatic Relations.

In both the exfiltration affair and the alleged “abduction/detention affair, the actions of the Swiss authorities and its diplomatic mission in Colombo constitute infringements of Sri Lanka’s sovereignty and the related non intervention principle, which is an essential condition for ensuring and developing friendly relations between nations.

Damage, self-inflicted

In the opinion of this writer, the Foreign Ministry has yet to respond to the attacks on sovereignty, in spite of international law being on its side. For the present at least, Switzerland seems to have won the day, having successfully maneuvered Sri Lanka’s attention away from its own extremely unfriendly act, which will have grave consequences for the country’s future stability, security and development.

By singularly focusing on the alleged ‘abduction/detention’ affair, the Foreign Ministry has let itself be diverted from the CI Silva’s exfiltration, the gravity of which is incomparable with the alleged abduction of a minor employee to obtain information stored on her mobile phone. Espionage is an act that affects the fundamental interests of the State. And yet, according to sources referred to in a recent article in The Island by Shamindra Ferdinando, “Sri Lanka hadn’t so far raised the issue of the police officer being given refuge in Switzerland”. Sources had also suggested that raising it had been “pre-empted” by the Swiss accusation of abduction of a local employee (The Island, 28.11.2019)

Why was this conscious decision taken not to pursue the damaging case of possible espionage and exfiltration? Why did the Foreign Ministry fail to protest Swiss intervention in the country’s internal affairs and its refusal to cooperate? These deeply unfriendly acts are clearly incompatible with the principle of sovereignty and the related principles of sovereign equality of states and non-intervention, which are non-derogable peremptory norms of general international law that form the basis of the United Nations Charter, as they do the Vienna Convention on Diplomatic Relations (1961), and the Vienna Convention on Consular Relations (1963).

The damage has also been done. OHCHR has already published on its website the Swiss version of the “abduction/detention” allegation, with the obvious intention of adding the ‘case’ to its “war crimes” documentation for use in future proceedings outside Sri Lanka. Statements by Sri Lankan authorities are not reflected on the website. Western media with its global antennas have gone to town on the alleged “abduction/detention” they attribute to the “return of the Rajapaksa brothers,” taking care not to leave out a reference to so-called “war crimes”. It is seldom that a foreign media carries a correction, or, if it does, it will be so that nobody notices or cares!

Now, for all intents and purposes, Sri Lanka finds itself cornered and trapped on terrain chosen by the opponent, literally on Swiss territory, on the defensive, fighting windmills and running in circles even as the battle front is being readied elsewhere and the US self-defense ‘agreements,’ MCC, SOFA, and ACSA, lurk in the shadows.

Turning the tables on Sri Lanka

Had there been an understanding of the opponent, events could have been anticipated and speedy and effective action taken on the CI Silva exfiltration affair, in which Switzerland stood on weaker ground, possibly preempting the alleged “abduction” or limiting the damage caused. The failure to do so allowed the Swiss authorities to turn the tables on Sri Lanka, thus becoming the accused instead of the accuser. The upshot was a defensive statement made on 28 Nov. by the Foreign Ministry reaffirming “unequivocally its commitment to give effect to the obligations undertaken as a State Party to the Vienna Convention on Diplomatic Relations (1961), to facilitate the smooth functioning of diplomatic missions in Sri Lanka”.

It is anybody’s guess why the Foreign Ministry thought it necessary to make such a statement when Sri Lanka had not failed in fulfilling any of its obligations as a receiving State, which, under the Vienna Convention, include not violating mission premises, protecting diplomats and their families from any form of arrest or detention, protecting all forms of diplomatic communication, exempting from taxation, and providing immunity from civil and administrative jurisdiction.

There is no indication either that Sri Lanka had failed to facilitate the “smooth functioning” of the Swiss mission, whose functions are to : (a) represent Switzerland; (b) protect its interests and its nationals “within the limits permitted by international law”; (c) negotiate with the Government of Sri Lanka; (d) ascertain “by all lawful means” conditions and developments in Sri Lanka, and report thereon to its Government; and (e) promote friendly relations between the two states and develop their economic, cultural and scientific relations.

If Sri Lanka had not failed in its obligations vis-a-vis the Swiss Embassy or in the duty to facilitate its smooth functioning, why then did Sri Lanka’s Foreign Ministry consider it necessary to reassure the Swiss authorities of its “unequivocal ” commitment?

Sri Lanka has the right to demand respect. As such, it’s foreign policy must be based on respect for international law and multilateralism, ensuring that its sovereignty, independence and territorial integrity are fully respected at all times and the principles of sovereign equality, non intervention and non interference fully complied with.

It is the duty of all States to develop friendly relations with others, irrespective of their political, economic and social systems or the levels of their development, in a manner that conforms with the purposes and principles of the Charter of the United Nations, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, the Vienna Convention on Diplomatic Relations, and the Vienna Convention on Consular Relations.

Beware of MCC, SOFA, and ACSA!

It is to be hoped that Sri Lanka will not adopt an ‘Ostrich Foreign Policy’ hoping that its troubles will go away! ‘War crimes tribunals’ are a real threat, but they are only the means to achieving the strategic ends of the country imposing it, necessarily a Western country. In the case of Sri Lanka, it is no secret that it is the US that has been leading the Human Rights Council resolutions, directly or indirectly through its Western allies. The end it seeks is also known. It is an end that will embroil Sri Lanka in America’s “lethal” wars for “self-preservation,” fighting friendly nations in its own neighbourhood, causing death and destruction.

Sri Lanka, ‘Beware of MCC, SOFA, and ACSA’!