US Congress has Sri Lanka in Its Gunsights

Daya Gamage,  courtesy of Asian Tribune, where the title runs thus U.S. Congress Tightens War Crimes Noose on Sri Lanka”

The United States Senate Committee on Appropriations last week approved the FY 2018 Department of State and Foreign Operations Appropriations Bill with $51.35 billion for diplomatic and humanitarian programs that strengthen U.S. national security and support American values abroad. Despite the Trump administration’s soft-peddling of American values abroad – democracy promotion, good governance, human rights, and rule of law etc. – the Senate Appropriations Bill, co-authored by Republican Lindsey Graham and Democratic Patrick Leahy, independent of the White House budget proposals released last month, underscored policy iteration or ‘riders’ on Sri Lanka’s commitment to “increasing accountability and transparency in governance; supporting a credible justice mechanism in compliance with United Nations Human Rights Council Resolution (A/HCR/30/ L.29) of October, 2015”.


The UNHRC resolution, jointly signed by the Governments of Sri Lanka and the United States, among others, requires the establishment of a hybrid commission – commission comprising both foreign and Sri Lankan jurists – to investigate and prosecute violation of International Humanitarian Law during the final phase of the battle between the Sri Lankan military forces and the fighting cadre of the militant-terrorist Tamil Tigers.

U.S. State Department official Alice Wells whose writ runs in South and Central Asian Affairs told the Asia-Pacific Sub Committee of the Congressional Foreign Affairs Committee on September 7 that the United States and Sri Lanka are working together to institute “a credible mechanism to investigate and prosecute alleged war crimes”. The war crimes investigation and prosecution, she told the U.S. Congress, will be executed “working together to fulfill the steps to which our nations agreed in a resolution (30/1) at the UN Human Rights Council (HRC) in 2015, and which were reaffirmed in a further HRC resolution (34/L.1) in March 2017”.

Acting assistant secretary Wells was fully aware of the ‘riders’ or the policy reiteration that was going into the Senate Appropriation Bill in relation to Sri Lanka when she made that statement before the US Congress. Here are the exact wordings – the riders – that were written in the US Senate Appropriation Bill which will be placed before both chambers of the congress for ratification before the end of September:

Sri Lanka

Bilateral Economic Assistance.—Of the funds appropriated by this Act under the heading ‘‘Economic Support Fund’’, not less than $35,000,000 shall be made available for assistance for Sri Lanka for economic development and democracy programs, particularly in areas recovering from ethnic and religious conflict: Provided, that such funds shall be made available for programs to assist in the identification and resolution of cases of missing persons.

Certification.—Funds appropriated by this Act for assistance for the central Government of Sri Lanka may be made available only if the Secretary of State certifies and reports to the Committees on Appropriations that the Government of Sri Lanka is—

(A) Repealing laws that do not comply with international standards for arrest and detention, and ensuring that any successor legislation meets such standards;

(B) Increasing accountability and transparency in governance;

(C) supporting a credible justice mechanism in compliance with United Nations Human Rights Council Resolution (A/HCR/30/ L.29) of October, 2015;

(D) Returning land in former conflict zones to former owners or compensating those whose land was confiscated without due process, which is in addition to steps taken during the previous calendar year;

(E) establishing a functioning office of missing persons and publishing lists of all persons who surrendered to such Government at the end of the war; and

(F) Redeploying the armed forces out of former conflict zones and restructuring and reducing the size of the armed forces.

International Security Assistance.— Funds appropriated under title IV of this Act that are available for assistance for Sri Lanka shall be subject to the following conditions—

(A) not to exceed $500,000 under the heading ‘‘Foreign Military Financing Program’’ may only be made available for programs to support humanitarian and disaster response efforts; to redeploy out of former conflict zones; and to restructure and reduce the size of the Sri Lankan armed forces;

(B) Funds under the heading ‘‘Peace-keeping Operations’’ may only be made available for training and equipment related to international peacekeeping operations. (End Text)

The U.S. Economic Assistance Funds and Military Finance Program will be available to the Government of Sri Lanka only if it complies with:

(a) The identification and resolution of cases of missing persons; publishing the list

(b) Repealing the Prevention of Terrorism Act

(c) Increasing accountability and transparency in governance

(d) Supporting a credible justice mechanism to investigate and prosecute alleged war crimes

(e) Returning all lands in the north and east to former owners

(f) Drastically reducing the presence of the military in the north and east.

With its previous reporting experience, Asian Tribune needs to reiterate here that the Democratic co-sponsor of the Senate Appropriation Bill Patrick Leahy is largely responsible for the ‘riders’ on Sri Lanka, as in the past, when the US Congress appropriated funds to Sri Lanka he insisted that, in keeping with the ‘Leahy Amendment’ to the Foreign Appropriations Act – the amendment he brought in the late 1990s – the Congress should cut foreign military assistance as Sri Lanka “was a gross violator of human rights”. During the Eelam War IV, Sri Lanka was denied military assistance in keeping with the Leahy Amendment.

Despite the Trump Administration’s misgivings about democracy promotion, human rights, good governance and rule of law, the Senate Appropriations Bill has allocated vast sums of funds for such programs worldwide.

It is important to remember that the president’s budget proposal is simply a request. It has no binding authority on Congress. The president’s budget request starts the process, and then Congress responds, which the Senate did last week. The federal funding process begins with the submission of the president’s annual budget request to the Congress which President Trump did in April. The administration uses the budget request to introduce new policies, programs or changes they would like to see enacted. It is prepared by the Office of Management and Budget (OMB), which functions as the chief administrative agency of the Office of the President. The Congress drafts the Appropriation Bill with the assistance of the Congressional Budget Office (CBO). As was the normal practice in the past, Congressional budget prevails when it takes effect on October 1 which begins the Fiscal Year.

The Senate Resolution of the budget, co-sponsored by Lindsey Graham and Patrick Leahy, has allocated the following funds for democracy promotion worldwide and human rights despite Trump budget proposed a 29% cut for the State Department and USAID operations:

National Endowment For Democracy: For grants made by the Department of State to the National Endowment for Democracy, as authorized by the National Endowment for Democracy Act (22 U.S.C. 4412), $170,000,000, to remain available until expended, of which $117,500,000 shall be allocated in the traditional and customary manner, including for the core institutes, and $52,500,000 shall be for democracy programs.

United States Agency For International Development: For necessary expenses to carry out the provisions of section 667 of the Foreign Assistance Act of 1961, $1,347,676,000.

Democracy Fund: $145,375,000, to remain available until september 30, 2019, which shall be made available for the Human Rights and Democracy Fund of the Bureau of Democracy, Human Rights, and Labor, Department of State: Provided, That funds appropriated under this heading that are made available to the National Endowment for Democracy and its core institutes are in addition to amounts otherwise available by this Act for such purposes.

Millennium Challenge Corporation: For necessary expenses to carry out the provisions of the Millennium Challenge Act of 2003 (22 U.S.C. 7701 et seq.) (MCA), $905,000,000, to remain available until expended.

The Senate Bill gives its policy reiteration or ‘Rider’ about the definition of democracy programs in this manner:

Definition Of Democracy Programs

For purposes of funds appropriated by this Act, the term ‘‘democracy programs’’ means programs that support good governance, credible and competitive elections, freedom of expression, association, assembly, and religion, human rights, labor rights, independent media, and the rule of law, and that otherwise strengthen the capacity of democratic political parties, governments, nongovernmental organizations and institutions, and citizens to support the development of democratic states, and institutions that are responsive and accountable to citizens.

Restriction On Prior Approval

With respect to the provision of assistance for democracy programs in this Act, the organizations implementing such assistance, the specific nature of that assistance, and the participants in such programs shall not be subject to the prior approval by the government of any foreign country.

The Asian Tribune notes here that the president of Sri Lanka Maitripala Sirisena has repeatedly said there will not be any investigation of war crimes, nevertheless with this latest pronouncements from Washington – Alice Wells’ statement before the Congress and the ‘Riders’ attached to the Graham-Leahy Resolution of 2018 Appropriation Bill – will he reiterate that such probe is out of the question risking U.S. foreign economic assistance?

Can Sri Lanka disassociate itself from the United Nations Human Rights Commission-process with this latest evidence?

Since the defeat of the Tamil Tigers in May 2009, the activated global political/diplomatic movement of the Tigers within the Tamil Diaspora has been lobbying western nations, especially the United States, to bring pressure on Sri Lanka to accept a hybrid commission to investigate alleged war crimes. The United States, in collaboration with other western nations, initiated resolutions scrutinizing Sri Lanka in 2012 onwards culminating both US and Sri Lanka jointly agreeing to the resolution (30/1) at the UN Human Rights Commission (HRC) in 2015 in which Sri Lanka committed to a hybrid commission. The US Congress budget proposals have acknowledged it further tightening the noose on Sri Lanka.

The U.S. Congress which has the sole authority to enacting its own Appropriation Acts to disburse funds overseas for economic assistance and military spending, independent of the White House, gives this clear and sound message to Sri Lanka: “You cannot have both, not have accountability for the military actions during the final phase of the war against the Tamil Tigers and receive our economic assistance”.

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