SOFA debate: Full of sound and fury? | Sunday Observer

SOFA debate: Full of sound and fury?

28 July, 2019

Left out of the hysterical public debate is the fact that Sri Lanka and the US have been operating under the terms of a SOFA for 25 years – signed during President Kumaratunga’s tenure, and maintained during the entirety of the Rajapaksa presidency and this Government’s term.

In 2007, a group of Haitian orphans identified over a hundred Sri Lankan soldiers on a UN peacekeeping mission who gave them cookies and juice in exchange for sex, revealing a chilling child sex ring spanning a three-year period. But the government of Haiti never prosecuted those Sri Lankan peacekeepers, and the United Nations, which corroborated the allegations through an independent investigation, also decided against trying to prosecute these Sri Lankan military personnel.

Instead, 114 of the peacekeepers were expelled to Sri Lanka where they would face justice under Sri Lankan law. Army Commander Sarath Fonseka appointed a court martial, who disciplined 30 of the 117, but did not sentence any to a jail term.

These soldiers, as with other Sri Lankan peacekeepers, are fortunate. Every Sri Lankan soldier sent on a UN Peace Keeping mission is covered by a United Nations Status of Forces Agreement (SoFA), that provides immunities, tax and licensing exemptions and explicit freedom from criminal prosecution in the host jurisdiction. (See infographic for full list of immunities for UNPKF)

While it was indeed a SoFA agreement that shielded Sri Lankan troops from foreign prosecution, the spectre of Sri Lanka entering into a similar agreement that would grant these same immunities to foreign troops visiting or potentially based on Sri Lankan soil has raised alarm in several quarters.

Sri Lanka too has played host to foreign peacekeepers in the past, with nearly 80,000 troops of the Indian Peace Keeping Force (IPKF) occupying the north of the country between 1987 and 1990. These troops too were alleged to have been complicit in serious crimes including extrajudicial killings, but one of the reasons that the allegations against them were not investigated was the diplomatic immunity granted by Sri Lanka to the Indian peacekeepers.

With the US and Sri Lankan government having each acknowledged that negotiations are underway between the two states on an updated SOFA between the two countries, speculation is rife that a new agreement between the two countries may provide diplomatic immunity for US troops based in Sri Lanka.

In fact, the stated policy of the United States is to seek such immunity clauses wherever possible. In January 2015, the International Security Advisory Board of the US State Department submitted a report on Status of Forces Agreements (SOFAs), commissioned by the Under Secretary of State for Arms Control and International Security in Washington DC.

According to the report, “U.S. policy seeks to maximize the exercise of jurisdiction over U.S. forces by U.S. authorities, whatever the form of the SOFA agreement – comprehensive, A&T equivalence, or other ad hoc protections. From this perspective, explicit agreement on exclusive U.S. jurisdiction is ideal. When SOFAs contain “concurrent jurisdiction” provisions, the United States rightly seeks to ensure that the host will in practice waive jurisdiction, so that effective exercise of jurisdiction over U.S. forces is maintained. The United States should continue, in most cases, to seek exclusive criminal jurisdiction, but where the local judicial system is a sound one, and there is reason to believe the host will normally waive jurisdiction, a concurrent jurisdiction regime should normally be acceptable.”

A fact that is largely missing from the present debate is that Sri Lanka and the United States have been operating under the terms of a SOFA for almost 25 years, since 1995. This agreement, signed under President Kumaratunge, grants all US military personnel in Sri Lanka full immunity from criminal prosecution for acts performed in both their private and personal capacities, both on and off duty.

The single page agreement carries no exceptions, and the only condition for visiting US troops to enjoy these protections is that they must enter the country on the invitation of the Sri Lankan government. The agreement has never been modified since, whether by the brief UNF-led government from 2001 – 2004, or during the decade of MahindaRajapaksa’s presidency.

The 1995 agreement was signed between Kadirgamar’s Ministry of Foreign Affairs and the US Embassy in Colombo, decades before the US Government developed the Global SOFA Template, and most status of forces pacts were considered binding between two states after the exchange of diplomatic notes. The 1995 US-Lanka agreement (see montage), affords the same diplomatic status to US military personnel and civilian employees of the US Department of Defence, as administrative and technical staff working in the US Embassy in Colombo. Throughout this period, US troops have visited Sri Lanka as technical advisors, for training programs, as part of joint exercises, and for humanitarian operations. The single critical common drawback for both the US and Sri Lankan governments with the existing agreement is its omission of specifics. For each contingent of visiting troops, the two countries have to individually negotiate and thrash out specifics to do with the carrying of arms, the validity of U.S. driving and other professional licenses in Sri Lanka, and the use of communication radio frequencies.

While each country has their own preferences and interests on what agreement would be reached on these points on each occasion US military forces visit Sri Lanka at the invitation of our government, both nations are agreed that it has become overwhelmingly tedious and taxing for high-level officials to keep renegotiating these points at every turn.

The dilemma faced by Sri Lankan military defence and military leaders is the challenge of having their cake and eating it too. On the one hand, they do not want to cut ties with the US military and believe that Sri Lankan forces benefit from engagement with their American counterparts, especially with respect to training and joint readiness exercises. But on the other hand, few leaders want to face the political cost of being seen to enter into any agreement to streamline these long-standing activities, because such agreements can easily be manipulated into public hysteria about a sudden violation of Sri Lanka’s sovereignty.

One senior military commander told Sunday Observer that there is no solution to their quandary in sight. “Take an example. What if we say US troops cannot wear US uniforms or carry arms on Sri Lankan streets, and that US driving licenses cannot be used in Sri Lanka, and that their troops cannot use our radio spectrum, and that the US would pay Sri Lanka $1 million for every visit. And that no US troops could be permanently based here, and all had to come with Sri Lanka’s explicit permission and be issued an ID card by the Ministry of Defence. Even if we got all of those concessions, if we signed a deal, these so-called political editors will still say that we are selling the country to the Americans.”

“The only solution they are leaving is for us to grind our exercises to a halt and have our protocol officers renegotiate these terms every time we want to do anything. It is a complete waste of time.”

Indeed, negotiations between Sri Lanka and the US on a revised Status of Forces Agreement have barely gotten off the ground since they began in late 2017. The US has presented Sri Lanka with a template agreement containing the ideal negotiating position for their government. However, much to the chagrin of Sri Lankan military commanders, Foreign Ministry officials have failed to aggressively negotiate the US proposal.

“We are opposed to specific terms, like carrying arms in public and immunity from our criminal jurisdiction, but the solution is to negotiate and come to an agreement once and for all. Not to hide behind a file and let our country's military suffer because bureaucrats are scared to do their jobs,” the military commander explained.

Based on the 2015 Security Advisory Board report, the US Government is alive to the challenges inherent to negotiating SOFAs with host countries, particularly since it rarely, if ever, offers reciprocal status to foreign troops on US soil. The report strongly advises US negotiators to give serious consideration to offering some form of reciprocal concessions to host governments to allay fears. Under these circumstances, the Sri Lankan Government could have sought to negotiate and win better terms, under a renewed agreement, as other countries negotiating SOFAs with the US have managed to do.

Negotiations on a renewed SOFA, based on the global SOFA template, began between the US State Department through the Embassy in Colombo and the Ministry of Foreign Affairs in 2017. In November 2017, the US Embassy sent the first draft of the agreement, and two rounds of negotiations have taken place between the Government of Sri Lanka and US officials so far. However, the GoSL is yet to present any suggestions of revisions to the draft proposed by the US Embassy, in writing, Sunday Observer learns.

The SOFA draft currently in the public domain, is essentially the global SOFA template, with the addition of one paragraph noting that the new draft shall replace the agreement between the two Governments that came into force in May 1995. Concerns have been raised about SOFA paving the way for US vessels and aircraft free access to Sri Lankan ports and runways. Claims are also being made that with SOFA in effect, the Sri Lankan authorities will be prohibited from entering or seizing dangerous goods from within a US Government vessel.

With or without a status of forces agreement, no ship can enter Sri Lankan territorial waters without informing the Government officially by way of diplomatic note, security experts told Sunday Observer. If any vessel enters Sri Lankan waters, within 12 nautical miles of the coast, the coastguard will request the ship to leave the area, the experts said. “Port call notices are given to the host country in advance. They can only enter our waters if we agree to accept the call. No vessel can forcibly enter our territorial waters, with or without a SOFA in place,” the expert, a retired military officer explained.

The official added that even without agreements like SOFA in place, any attempt by the Sri Lanka Navy to board a foreign Government owned ship, would constitute an act of war. “Ships are that country’s territory. The Navy may only go on board on that Government’s invitation. This is a privilege afforded to Sri Lanka Navy ships that are flag carriers anywhere in the world too,” the expert explained. This principle would apply to any foreign ships that make port calls in Sri Lanka, whether from the US, Japan, India or China, the official added.