TamilWeek Mar 12, 2006
“Amending the CFA”-an unnecessary
provocation

Negotiators should not provoke each other

by Austin Fernando

The most discussed topic after Geneva was not the
implementation of the outcome of the Talks, but whether the
CFA was amended. Even the JHU and JVP "joined hands"
with protests over this issue, hyped by a statement made by
Mr. H.L de Silva, based on legalistic interpretations. The
attempt here is to study his statements from an operational
viewpoint.

Several reasons may have provoked this statement, i. e. to
placate the JVP/JHU or buy time for another strategy or
having found the difficulties to cope with the LTTE demands
to deviate LTTE focus by dabbling over a non-issue etc.

His reasoning to theorize that the CFA has been amended
was based on six points. They were:

i LTTE's insistence that reference to the CFA alone is
insufficient, insinuating that decisions taken at Talks are
therefore amendments.

ii The reconfirmation of LTTE's commitment to cooperate
and respect SLMM rulings is a specific undertaking and
therefore is an amendment.

iii The commitment in the Joint Statement to take necessary
measures on intimidation, acts of violence, abductions and
killings is an onerous obligation by the LTTE.

iv Parties agreeing to take "all necessary measures" against
acts done by instigation or with acquiescence is a step
towards being more comprehensive.

v. The right of the Government to take all necessary
measures to ensure that no armed group or person other
than government security forces will carry arms or conduct
armed operations in accordance with the CFA is an
"additional provision."

vi. The SLMM being empowered to report on the
implementation of the CFA is an additional provision.

The Statement speaks of the Parties’ committing to respect
and uphold the CFA. Any CFA adjustments are done with
"good intentions" and within the "spirit of the Agreement" and
other qualities enumerated in the Preamble. There had been
such adjustments done during the UNF regime, which were
not called CFA "amendments."

Cooperating, respecting and upholding SLMM decisions are
in the CFA. Refer Preamble to Article 3 (i.e. "8230¡­parties
shall fully cooperate8230¡­") and Articles 3.9 (i.e." 8230¡­.
appropriate protection of and security arrangements..) and
3.10 (i.e. 8230¡­freedom of movement8230¡­...widest
possible access"). The issue was implementation and the
responsibility was on the Parties. Amendments are required
and should be done in consultation.

I quote an agreement reached in Hakone to strengthen the
mandate and capacity of the SLMM, which was followed by
LTTE refusing the SLMM to visit some disputed sites. The
Berlin decision to work out effective safeguards with SLMM to
avoid sea-incidents did not materialize. SLMM determinations
to release Policemen, soldiers etc in LTTE custody were and
are eternally delayed by LTTE. Advice given to Navy and
LTTE to inform the SLMM of operations at sea was not
respected by both Parties (sometimes for valid reasons)
provoking SLMM to demand prior intimation. Wasantha
Karannagoda and Mendaka Samarasinghe are best sources
for de Silva to educate on operations.

The Parties have committed through the CFA to take all
necessary measures to ensure that there will be no
intimidation, acts of violence, abductions or killings. Refer to
Article 2.1 for "8230¡­torture, intimidation, abduction8230¡­
..", Article 1.2 (a) for "assassinations" and "abductions".
Whether mentioned under military operations or
normalization is immaterial, as such actions are integrated.
Therefore, as these are violent actions, one cannot justify a
mere restatement as an amendment.

Fourth reason relating to "more comprehensive" action
cannot be an event due to operational difficulties in "taking
all measures" as envisaged by de Silva. Best way to adjudge
the effectiveness of comprehensive action is to ask the IGP
to report the number of accused LTTE cadres who returned
to courts after obtaining bail. IGP's response will not make de
Silva a happy man. Therefore, while appreciating his rhetoric
one should not be overjoyed of extending action to direct or
indirect infringements or instigations, as follow-up experience
had been negative. Of course, they should be improved

On the other hand, if this comprehensiveness is such an
important deviation from the CFA why did not the "seven
lawyer member negotiating outfit" make sure that these
wordings are incorporated into the Statement?

The reference to right of the Government Forces and not
any other group to carry arms is the law of the country. CFA
concurs with this sentiment under Article 1.3. If the current
status in the north and east is different this could have been
implemented accordingly. Even in the south there had been
failures in effecting this legal power.

However, as there are no changes made in Geneva to
Articles 1.4 (i.e. "LTTE fighting formations shall hold their
ground positions," "no 8230¡­right of movement," and
ensuring "the maximum possible distance" ), 1.5 permitting
holding to ground as on 24-12-2001 when demarcations
have not been clearly established, and 1.7 not permitting
movement of munitions , explosive or military equipment to
area controlled by other party this 'supposedly enhanced
power' cannot be made operative without violating the CFA,
therefore, making such "amendments" redundant. What de
Silva speaks is legality and what we discuss is the reality of
operations. Unfortunately, the Talks are not dictated by court
processes.

Under this point de Silva exhorts that "an additional provision
which is supplemental in character is an amendment, though
the original text was not specifically amended." Being a
layman I bow down to his excellent and superior knowledge
of law and believe he states the truth and nothing but the
truth. Yet, I have a query. This very important legal point is
not mentioned in the Joint Statement.

Nevertheless, the LTTE will have similar reciprocal right for
conclusions without changing the text, interpretations and
practical reactions as an equal partner at Talks, whether we
like the LTTE and equity contention or not. The LTTE will
demand ex-parte amendment of the CFA, as fancied by de
Silva- for instance, to enable Sea Tiger movements at sea
without any restrictions. Will he accept it? This will make a
mockery of interpretations, and create much larger problems
of implementation of the CFA. Perhaps, at the end Geneva
Talks might have created problems than solving.

CFA Article 3.3 mandates the SLMM to report to the
Norwegian Government. SLMM has been continuously
reporting to the Norwegians, GoSL and LTTE, though the
latter two parties were not mentioned in Article 3.3. There
were some working arrangements made by defense
authorities for confidence building, reduce potential violence
and to enhance the spirit of the agreement which could be
even safely interpreted as violations of the CFA. Yet the
Facilitator, Monitors, GoSL or LTTE never called them
"violations" or "amendments". Had de Silva discussed these
with Navy Commander Karannagoda he could have
explained such arrangements (though with forthright
chagrin!!).

He has been trying to make a point on implied changes. Now
that the LTTE, JHU, JVP and UNP have problems with the
Joint Statement and his implied interpretations one has to
imply that the implied changes are only limited to him. I think
that a unanimous decision of this nature from divergent
political groups cannot be overridden by weak arguments
and modular constructions, lacking factual and operational
reinforcement. One should not forget that peacemaking is a
dynamic ongoing process and flexibility is a key word in it. No
wonder problems arise when a "lawyer loaded team" flexible
only to law talks peace!Amendments or modifications could
be validly done only "by mutual agreement of both parties"
having "notified in writing to the RNG." (CFA Article 4.3). The
Norwegians could publicly clarify this status by now. The
LTTE protests prove intolerance of any amendment of the
CFA. GoSL too could state whether refuge under Article 4.3
was sought. Clearing mindsets is important.

If amendments have been made to the CFA, the GoSL
should distribute the amended document to all political
parties to respond accordingly. The GoSL's Peace
Secretariat and Norwegian websites should place the
"Amended CFA", as LTTE Peace Secretariat will not do so
because of their denial of "amendments".

The UNF practice at negotiations was to sign a List of
Decisions or Record of Decisions signed by the Parties and
Facilitator. Hopefully this would have been followed in
Geneva. Such document enables settlement of disputes and
lessens implying, interpretation or misinterpretations of
decisions to suit Party agendas. Therefore, the Peace
Secretariat could produce such List or Record of Decisions
available to the public to clear any doubts on amendments.
This will ensure transparency as envisioned in Mahinda
Chintana and enable us to counter the arguments of the
LTTE, if they are wrong. Some suspect that this formality has
not been adhered by the negotiators, exposing the lack of
concern of the Team for futuristic references. It is more
surprising when seven lawyers who are more comfortable
with signed and attested documents fail to do so.

Finally, it must be stated that the "Amendment Issue" has
provoked the LTTE as well as the southern political base.
Now this has happened, let us heed the advice of the
Facilitator not to provoke each other and be more
professional at negotiations and also after. Being too
legalistic or too accommodative will not assist peacemaking
and the GoSL and LTTE both should be mindful of this
principle.
[DailyMirror]