USA’s Lankan quagmire over ACSA and SOFA

Last week, the debate on the proposed Status of Forces Agreement (SOFA) between Sri Lanka and the US took centre stage. The proposed SOFA is not something specific to this country but a generic agreement signed by the US with many other states. Many of the provisions would be the same in SOFA’s throughout the world. However, the very idea of entering into a Status of Forces Agreement with the US ran into a storm of protest in Sri Lanka with even outfits like the Ceylon Chamber of Commerce (CCC) and the Bar Association of Sri Lanka (BASL) taking up the issue.

The CCC, the oldest trade chamber in the country issued a statement requesting the government of Sri Lanka to provide a greater level of transparency with respect to these agreements and their potential consequences and also to clarify the exact position with regard to the current status of the negotiations and/or execution of these agreements. The President of BASL Kalinga Indatissa, PC held discussions with Opposition Leader Mahinda Rajapaksa with regard to the proposed SOFA, the already operational Acquisition and Cross-Servicing Agreement (ACSA) and the proposed Millennium Challenge Corporation agreement that are to be signed with the US. Indatissa warned that if the SOFA was signed, Sri Lanka would become a target of anti-American terrorists.

Indatissa further pointed out that even if US personnel in Sri Lanka committed offences of any sort, Sri Lankan law could not be enforced on them, under the provisions of the proposed SOFA. In the meantime, the State Minister of Defence issued a tepid and unconvincing denial stating that the government of Sri Lanka did not intend signing any such agreements. It was even said that the planned visit of the US Secretary of State Mike Pompeo to Sri Lanka had been called off at the last moment because the US government had failed to get the proposed SOFA approved by the Sri Lankan government in time for his visit. The blame for this mess falls squarely on the US. From the very beginning, the US had adopted the wrong approach towards entering into agreements with Sri Lanka. When the US signed the Acquisition and Cross Servicing Agreement (ACSA) with former Defence Secretary Gotabhaya Rajapaksa in 2007, it was the US that wanted it to be done secretly.

Robert Blake’s original sin

A cable sent to the State Department by the then US Ambassador in Colombo Robert Blake, on 31 January 2007, (several weeks before the ACSA was signed) and released to the public by Wikileaks shows how things went wrong from the very beginning. The extracts from that cable reproduced here are self explanatory. The following is what Blake wrote:

“On December 7, 2006, Ambassador and Office of Defense Cooperation (ODC) Chief met with Sri Lankan Defense Secretary Gothabaya Rajapaksa to provide background information on a Acquisition and Cross Servicing Agreement (ACSA) and a the draft ACSA proposed for signature. On January 25, 2007, Secretary Rajapaksa provided concurrence to ODC Chief on the proposed agreement. Secretary Rajapaksa stated that he was ready to sign the SIPDIS agreement at anytime convenient to the U.S …”

“The US Government faces some risk that the Government of Sri Lanka might seek to exploit the signing to convey the US Government’s support for possible ongoing offensive military operations. The Embassy therefore recommends the Ambassador sign the agreement in a low-key ceremony with Secretary Rajapaksa in late February. The Sri Lankan military is presently engaged in mop-up operations against the LTTE in eastern Sri Lanka. However, the Defense Secretary and other military leaders have hinted they are considering further offensive military operations in northern Sri Lanka. The US Government has informed the GSL that we oppose large scale offensive military operations because we believe the Government should focus on developing a power-sharing proposal that can form the basis for peace negotiations with the LTTE.”

“We recommend holding off on the signing ceremony until late February when we will have a clearer idea of the Sri Lankan military’s intentions. We also do not wish to detract attention from the Sri Lankan Commission of Inquiry (on human rights) and the work of the International Independent Group of Expert Persons who will arrive in Sri Lanka the second week of February to observe the work of the Commission. Since the ACSA benefits U.S. forces transiting through the region, and since the GSL might leak news of the signing, the Embassy proposes to have the Ambassador sign the ACSA with the Defense Secretary with a select number of photographers and no statements. The Embassy will then issue a press release following the ceremony explaining the purpose of the ACSA.”

There was nothing in the 2007 ACSA that warranted all this secrecy except for the US Ambassador’s fear that the Sri Lankan government would use it as a propaganda tool gain an advantage over the LTTE. That was an era when the conservative political parties in the West had all succumbed to the propaganda of the liberals and, in fact, become clones of the liberal political parties. Thus, to some extent the Republicans tended to mouth the same platitudes as the democrats. Even though the Republican Party administration in the US in 2007 was carrying on a worldwide campaign against terrorism (meaning terrorism directed against the US), with regard to other countries, they continued the democratic party line of advocating negotiations instead of military action.

As far as the US was concerned only it could exercise the option of fighting terrorists instead of negotiating with them. All other countries were required to negotiate with terrorists. The Republican Secretary of State Condoleeza Rice was even preaching the virtues of negotiating with the Chechen terrorists to Russia! It was this mind set that led Ambassador Blake to insist on secrecy when signing the ACSA with Sri Lanka. The fact that the Sri Lankan government had by then commenced dealing with the LTTE militarily was an embarrassment to them. If not for this, there was nothing in the ACSA of 2007 that warranted the secrecy in which it was signed.

In any event, it must be said that despite the Bush administration’s lack of a backbone in the face of liberal propaganda, they were helpful to Sri Lanka in the struggle against terrorism in other ways, such as canvassing the EU to get the LTTE named as a terrorist organization, and providing for a mutual exchange of naval intelligence which was vital for Sri Lanka. The previous Republican administration may have thought that it was too exhausting to fight the liberals on all fronts so they just fought the liberals only with regard to domestic policy and when the interests of the US were directly involved and tended to fall in line with the liberals when it came to policy towards countries like Sri Lanka.

Gota’s ACSA

Be that as it may, despite Blake’s misplaced qualms the previous Republican administration was helpful to Sri Lanka and Gota was right to give them some quid pro quo by signing the ACSA in 2007. There was absolutely nothing special about the Acquisition and Cross Servicing Agreement (ACSA), which Gota signed. It was like so many other ACSA’s that the US had signed with other countries. That ACSA was designed to facilitate reciprocal logistic support between the signatories to be used primarily during combined exercises, training, deployments, operations, or other cooperative efforts, and for unforeseen circumstances or exigencies, in which one of the parties may have a need of logistic support, supplies, and services. Specifically excluded from its coverage were weapon systems such as guided missiles, naval mines and torpedoes, nuclear ammunition and items such as warheads, warhead sections, cartridge and air crew escape propulsion system components, chaff and chaff dispensers, guidance kits for bombs or other ammunition, chemical ammunition (other than riot-control agents), any other materials, subject to the Atomic Energy Act of 1954.

Only non-lethal items of military equipment which are not designated as significant military equipment on the US Munitions List were covered by the 2007 ACSA between Sri Lanka and the USA. Under that agreement logistic support meant supplies and services such as food, water, billeting, transportation (including airlift), petroleum, oils, lubricants, clothing, communication services, medical services ammunition, base operations support (and construction incident to base operations support), storage services, use of facilities, training services, spare parts and components, repair and maintenance services, calibration services, and port services, use of general purpose vehicles and other non lethal terns of military equipment. Payment was to be made for the logistic support, supplies, and services provided to the USA under this agreement.

These are all generic features of all ACSAs that the US has signed with various countries. For example, the above mentioned provisions of the Sri Lankan ACSA of 2007 are almost identical to those found in the ACSA signed between the US and Australia in April 2010. The difference being that in Australia, the ACSA is a public document whereas in Sri Lanka it is a top secret document. When the ACSA with Sri Lanka was renewed in 2017, it was once again shrouded in secrecy. The renewed document too has not been made public. An issue has been raised about the annexures that were added to the 2017 agreement. We know that annexures were added to the 2017 ACSA because American records indicate that there were annexures to the 2017 agreement.

What were these annexures? As a separate SOFA has been proposed for Sri Lanka we know that the usual SOFA provisions have not been included in the annexures to the 2017 ACSA, which is just as well because Status of Forces Agreements can appear in various formats. In fact, according to the text of the proposed draft SOFA agreement between Sri Lanka and the USA, it was to be entered into not as a formal agreement but simply as an understanding arrived at on the basis of an exchange of letters. Since there are many ways in which a SOFA can be entered into, there is justifiable anxiety about the annexures of the 2017 ACSA agreement.

The annexures accompanying other ACSA agreements entered into by the USA, largely refer to the details pertaining to the implementation of the agreement such as the manner in which goods and services are to be ordered from the host country, the forms that are to be used to place orders, the data that have to be provided, the manner in which the forms have to be filled, the Points of Contact for both contracting parties, details as to who will be responsible for the orders placed, the manner in which the payment will be made etc. Such annexures typically tend to go into fifty to sixty pages. When the ACSA between Sri Lanka and USA was renewed in 2017, what were the annexures that were added to it? Were they the innocuous annexures dealing with the minutiae of implementation that we see in other ACSA agreements or were they something more sinister? We have no way of knowing because everything is shrouded in secrecy.

SOFAs as generic documents

Even though the Status of Forces Agreement that has been proposed with Sri Lanka is shrouded in secrecy, as far as other countries are concerned, SOFA agreements are open documents. The provisions of the proposed Status of Forces Agreement between Sri Lanka and the US are almost identical for example to the USA’s SOFA with Poland. The provisions in these agreements are largely generic and can be cut and pasted from one agreement to another with minimal changes. SOFA agreements apply to US military and civilian personnel working for the US Department of Defense, and to US contractors under contract to the US Department of Defence. The agreement applies to the presence of US personnel in the host country in relation to ship visits, training, exercises, humanitarian activities, and other activities mutually agreed.

Such US personnel are to be accorded the privileges, exemptions and immunities accorded to the staff of a diplomatic mission. US personnel may enter and exit the host country with US identification. The host country accepts as valid all professional licences including driving licences issued by United States. US personnel will be authorised to wear uniform while performing official duties and to carry arms. The government of the United States will continue to exercise criminal jurisdiction over US personnel while in the host country. US personnel shall not be liable to pay any tax in the host country. Importation, exportation, and use shall be exempt from any inspection, license, other restrictions, customs duties, taxes or any other charges.

Vessels and vehicles operated by the US Department of Defense may enter, exit, and move freely within the territory of the host country. US vessels and aircraft shall not be subject to the payment of landing fees or port fees, pilotage charges, overflight, terminal or similar charges etc. Aircraft and vessels of the US government shall be free from boarding and inspection. According to the US Congressional Research Service the United States is currently party to more than 100 agreements that may be considered SOFAs. A SOFA is an agreement that establishes the framework under which US armed forces operate within a foreign country. The agreement provides for rights and privileges of covered individuals while in the foreign jurisdiction, addressing how the domestic laws of the foreign jurisdiction shall be applied to U.S. personnel while in that country.

The Department of State and the Department of Defense, working together, identify the need for a SOFA with a particular country and negotiate the terms of the agreement. SOFAs may be as short as one page or in excess of 200 pages as is the case with the SOFA between the US and Germany. The question that the US government should ponder is why there is so much resistance in Sri Lanka to signing a SOFA agreement with the US. The first reason is that Sri Lankans in general do not see the USA as an ally or even a friend. For the most part, the US is seen as an adversary that has worked against Sri Lanka in the international arena especially during the Obama administration. There is the general awareness that Sri Lanka got on fairly well with the previous George Bush Republican administration despite the hang-ups that the Americans had about Sri Lanka. Even though the Republican Party has been restored to power, under the former US Ambassador Atul Keshap the Democratic deep state was fully operational in Sri Lanka and Sri Lankans felt no difference even after Trump defeated the Democrats.

What looms large in the minds of most Sri Lankans are the UN Human Rights Council resolutions that were brought against Sri Lanka by the Obama administration and the agenda it had to literally dismember Sri Lanka by striking down the armed forces and intelligence services and introducing new laws and Constitutions that would have broken Sri Lanka into eight or nine semi independent states. The vast majority of the general public sees no reason to give the armed forces of a hostile power privileges in Sri Lanka. When one looks at other countries such as Afghanistan, Japan, South Korea, Philippines and Iraq with which the US has SOFAs all those countries are accepted as allies by the US and the people in those countries (at least the pro-government types in Afghanistan and Iraq) would see the US as an ally and not as an enemy. Most importantly, other countries with which the US has SOFAs such as the ones mentioned earlier get billions of US Dollars in grants and other military aid whereas we get nothing.

The few hundred million dollars that the US seems to be willing to throw in Sri Lanka’s direction is just chicken feed and the people know it. What Sri Lanka has been getting from the US since 2009 are only criticisms and lectures on how to run our country. The US does not want to even acknowledge us as partners. In such circumstances, who in his right mind will be happy at a proposal that will give US troops a free run of this country? The presence of US troops in this country will on the one hand seriously compromise the non-aligned tradition which has become an article of faith in this country. Then there is the very real danger that the presence of US troops on Sri Lankan soil may spark off rivalry between super powers. Then there is the danger that the presence of US troops in our country may fuel Islamic terrorism as well.

Sri Lanka will have to go through all that for nothing in return from the US– not even a kind word let alone the kind of goodies that other countries get for doing the US similar favours

by C.A.Chandraprema



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