Sri Lanka-U.S. sign SOFA: License for U.S. Military to Enter

(Courtesy of Asiantribune)

The Government of Sri Lanka has entered into the military agreement called Status of Forces Agreement (SOFA), considered controversial even by an American ally The Philippines which abrogated the ‘pact’ a couple of months ago, with the United States of America, it was revealed by Cabinet spokesman Minister Bandula Gunawardene at a media briefing in Colombo July 01.

Trump White House official for South Asian Affairs in the US National Security Council Lisa Curtis (rights) talking to President Gotabhaya Rajapaksa with Alice Wells, Assistant Secretary for South-Central Asian Affairs in the State Department and U.S. Ambassador to Sri Lanka Alaina Teplitz when they met the President on January 14 this year

The SOFA which provides effective activation of the 2017-signed 83-page Acquisition and Cross-Services Agreement (ACSA), according to a public statement by the American Ambassador Alaina Teplitz on May 24 last year, would “allow U.S. forces to tour the country to conduct combined security operations.”

The government move, as the Asian Tribune inquiries found, in signing the SOFA with the U.S., was the culmination of the long process of dialogue commenced from August 2018 during the previous Sirisena administration based on the exchange of classified diplomatic notes between the American Embassy and the Ministry of Foreign Affairs.

The media event was convened by Cabinet spokesman Minister Bandula Gunawardene on July 01 to inform the status of the now controversial Millennium Challenge Corporation Compact Grant (MCC) when he disclose the signing of the SOFA.

“We have taken a decision that all agreements should be in keeping with our constitution; they should not harm our national security; they should not infringe the sovereignty and territorial integrity of the nation. Sri Lanka will not sign any agreement that violates those basic principles. We have not signed the MCC, and President Gotabhaya Rajapaksa has sought the opinion of all the cabinet members. We have signed the ACSA and Sofa”, said the cabinet spokesman Gunawardene.

This was the first occasion that an official announcement was made about the completion of the signing of the SOFA between Sri Lanka and the United States.

The delay in signing the SOFA was attributed to public outcry whether American troops could enter Sri Lanka’s soil, and the American ambassador Teplitz gave an explanation to the affirmative when she met the Malwatte Chapter High Priest in Kandy on May 24 last year.

American ambassador following her meeting with the Mahanayake of Malwatte Buddhist Chapter dismissing the popular belief that the U.S. was planning a military base, confirmed, if Status of Forces Agreement (SOFA) was reached between the two nations, the arrangement would be “to allow U.S. forces to tour the country to conduct combined security operations.”

She said such steps were “very important to strengthen the security of the country as well as strengthen other sectors.”

She did not disclose what ‘other sectors’ were.

When the Malwatte Chapter Mahanayaka Thero referred to American troops entry to Sri Lanka is seen by everyone as dangerous, the Ambassador, referring to the ongoing discussions between the two countries on the details of the SOFA, said “I think what you are referring to is the visiting forces agreement that we are negotiating with the government.”

Following the discussions between the representatives of the United States Government and the Foreign Ministry of the Government of Sri Lanka, the Embassy of the United States of America in Sri Lanka in a ‘Confidential’ note addressing the Foreign Ministry dated 28 August 2018 reiterated the mutually-agreed upon clauses that are incorporated in the Status of Forces Agreement (SOFA) which Asian Tribune construed as inimical to the sovereignty and territorial integrity of Sri Lanka.

Despite Cabinet spokesman Minister Bandula Gunawardene said at the July 01 media gathering that no agreement inimical to the sovereignty of Sri Lanka will be entered into, the ‘Asian Tribune’ is in a position to disclose what Washington endeavors to achieve at the expense of Sri Lanka’s sovereignty providing a reading of this ‘classified’ document and the total repulsive nature of the ‘contents’ of the SOFA now signed between the two countries, as disclosed by Gunawardene.

The classified U.S. Diplomatic Note refers to American troop arrival in Sri Lanka under SOFA, and the facilities the U.S. military will be awarded with the concurrence of the Government of Sri Lanka: A blatant violation of sovereignty and territorial integrity of an independent nation contrary to what the cabinet spokesman said.

SOFAs are multilateral or bilateral agreements that generally establish the framework under which U.S. military personnel operate in a foreign country and how domestic laws of the foreign jurisdiction apply toward U.S. personnel in that country.

The Dip Note says “U.S. personnel be accorded the privileges, exemptions, and immunities equivalent to those accorded to the administrative and technical staff of a diplomatic mission under the Vienna Convention on Diplomatic Relations; that U.S. personnel may enter and exit Sri Lanka with U.S. identification and with collective movement or individual travel orders”.

The communication reminds that the U.S. personnel are not subject to Sri Lanka’s criminal jurisdiction saying “The Government of Sri Lanka recognizes the particular importance of disciplinary control by U.S. Armed forces authorities over U.S. personnel and, therefore, authorizes the Government of the United States to exercise criminal jurisdiction over U.S. personnel while in Sri Lanka.”

It further reminds that, U.S. personnel are free to import and export items without being subject to Sri Lankan inspections: “…the U.S. Department of Defense and U.S. personnel shall not be liable to pay any tax or similar charges within Sri Lanka. The U.S. Department of Defense and U.S. personnel may import into, export out of, and use in Sri Lanka any personal property, equipment, supplies, material, technology, training, or services in connection with activities under this agreement……They shall be exempt from any inspection within Sri Lanka.”

Embassy Note further reminds another understanding toward the finality of SOFA the liberty to move freely of the U.S. Department of Defense vessel and vehicles within the sovereign territory of Sri Lanka: “The Embassy proposes that vessels and vehicles operated by or, at the time, exclusively for the U.S. Department of Defense may enter, exit, and move freely within the territory of Sri Lanka.

Another clause in the SOFA says “Aircrafts and vessels of the U.S. Government shall be free from boarding and inspection.”

The diplomatic exchanges between the American Embassy and the Ministry of Foreign Affairs form the basis of the SOFA when both parties agree to the conditions and contents of the notes, once both parties agree to the contents it is construed that both governments have signed to make SOFA an effective instrument.

Another condition:

The Embassy also proposes that the U.S. Department of Defense may contract for any material, supplies, equipment, and services (including construction) to be furnished or undertaken in Sri Lanka without restriction as to choice of contractor, supplier, or person who provides such material, supplies, equipment or services. Such contracts shall be solicited, awarded and administered in accordance with the laws and regulations of the Government of the United States of America.

Acquisition of articles and services in Sri Lanka by or on behalf of the U.S. Department of Defense in connection with activities under the Agreement shall not be subject to any taxes or similar charges in Sri Lanka.

The proposed SOFA, agreed by both government officials as indicated in this classified diplomatic communication have total freedom of movement within the sovereign state of Sri Lanka: “The Embassy proposes that U.S. personnel shall have freedom of movement and access to and use of mutually agreed transportation, storage, training, and other facilities required in connection with activities under this Agreement.”

In one of the undertakings the Sri Lanka Government under SOFA the U.S. Armed forces are given the right to operate its own telecommunication system within the Island of Sri Lanka. The following paragraph of the diplomatic note is clear that U.S. military personnel will be arriving and located on the Island.

The Government of Sri Lanka recognizes that it may be necessary for the U.S. Armed forces to use the radio spectrum. The U.S. Department of Defense shall be allowed to operate its own telecommunication system. This shall include the right to utilize such means and services as required to ensure full ability to operate telecommunication system. The use of the radio spectrum shall be free of cost to the U.S Government.”

Washington wants Colombo to acknowledge what is stated in the classified Diplomatic Note that it agrees to everything written in it. The purpose of the Note was that. When the cabinet spokesman Bandula Gunawardene disclosed this week in Colombo that Sri Lanka has already signed SOFA the statement implies that the government has agreed to the conditions of the American Embassy Diplomatic Note which gives effect to the signing of SOFA between the two governments.

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