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Diplomatic impunity – why suspected war criminals should not be diplomats

By 6 December 2012July 28th, 2023International Justice Resources7 min read

It was recently reported that Sri Lanka intended to deploy suspected war criminal, General Shavendra Silva, to South Africa to take up the post of deputy ambassador. In anticipation of this move SALC in consultation with the Foundation for Human Rights and a number of Solidarity Groups in South Africa, including that Tamil Federation of Gauteng and the South African Tamil Federation prepared and submitted a briefing paper to South African President Jacob Zuma, outlining the legal implications of recognising General Silva. The President is the person constitutionally mandated, in terms of section 84(2)(h) of the Constitution, to either receive and recognise foreign diplomats or to decline the sending state’s request.

SALC has learnt that South Africa declined to receive General Silva. Although there is no official confirmation of this, if true, SALC applauds this decision. It demonstrates principled observance of South Africa’s commitment to ending impunity for international crimes and respect for human rights worldwide. It also shows that South Africa’s foreign policy subscribes to the belief that the maintenance of political and international relationships will not trump human rights considerations.

The briefing paper highlights the legal implications of recognising persons accused of war crimes and discusses the considerations that should inform decisions made in terms of section 84(2)(h). These are relevant beyond the circumstances of General Silva’s anticipated deployment and it is hoped that the briefing paper will inform future decisions in which the eligibility of diplomatic nominees are assessed, especially in instances where the sending state is one with a questionable human rights record.

The recognition of foreign diplomats is a decision that ultimately rests with the President. This however does not mean that the President can make decisions outside the parameters of the Constitution. There is a distinctly South African approach to be taken in this regard which requires the exercise of all public power to subscribe to the rule of law, be rational and in accordance with the principle of legality.

Where there are allegations of crimes against humanity and war crimes the President must assess their eligibility with reference to two key considerations: the purpose and integrity of diplomatic status and its attendant privileges and South Africa’s domestic and international obligations to ensure accountability for international crimes under the Rome Statute, Geneva Conventions and customary international law.

Recognition in terms of section 84(2)(h) confers diplomatic immunity on the person concerned. The practice of diplomatic immunity is intended to safeguard sovereign equality between states and enable the peaceful conduct of foreign relations. It is not intended to shield individuals from accountability for egregious human rights violations. The extension of diplomatic immunity to alleged war criminals would amount to an abuse of the internationally regulated system of diplomatic status.

Moreover, by according diplomatic immunity to suspected war criminals, South Africa would render itself complicit in their impunity, frustrating efforts at accountability and denying justice to victims. What is more, South Africa would find itself in violation of its own constitutional, domestic and international obligations to combat impunity.

The inviolability of immunity afforded to consular staff and diplomats is a contentious area of international law and has generated much scholarly debate – in particular, whether persons accused of core international crimes are entitled to diplomatic immunity. However, this debate is fluid and constantly evolving, and it is perhaps only a matter of time before absolute immunity takes on a more qualified character in respect of persons accused of war crimes, crimes against humanity and genocide. This will however depend on individual states stepping up and ensuring that they do not bestow immunity on persons accused of international crimes.

The vetting of persons nominated to diplomatic posts is therefore an important component of ensuring accountability for international crimes. States are not obliged to accept diplomatic nominees and, in the context of international crimes, states must make decisions that ensure that the objective and purpose of international obligations, assumed either through ratification of international instruments or by virtue of their status under international law, are realised through rational and lawful assessments.

In South Africa this is a constitutional imperative, and should the President make decisions of this nature outside the confines of the Constitution it could render his conduct susceptible to judicial review.


This entry was posted in International Criminal Justice and tagged Constitution of South Africa, diplomatic immunity, international criminal law, presidential powers, South Africa, war crimes. Bookmark the permalink.




7 DECEMBER, 2012 AT 11:26 AM 
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  • Usha S Sri-Skanda-Rajah says: 
7 DECEMBER, 2012 AT 1:17 PMcom/05122012-un-internal-probes-revelations-citing-un-failures-scathing-indictment-on-rajapaksa-government-time-to-arraign-accused-oped/
Not only must suspected war criminals not be allowed to be diplomats they must be investigated for their alleged crimes. The apended link analyses why UN must move from internal probe to criminal investigation of the accused suspected of war crimes…in the final months of the war in Sri Lanka.
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  • Srivanamoth says: 
7 DECEMBER, 2012 AT 2:54 PM 
Silva is like a red hot potato. Nobody wants to have him. So why is he being flaunted to other countries?
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  • Saro says: 
7 DECEMBER, 2012 AT 8:11 PM 
South Africa showed the world by appointing Truth and Reconciliation Commission in the post Apartheid Africa that justice and reconciliation is possible through peaceful means. What happens in Sri Lanka is jingoism of military victory by allegedly massacring tens of thousands of civilians (UN Panel Report) after prolonged starvation. South Africa has bitterly experienced how during the Apartheid era the indigenous Africans were wooed with bribes and perks to undermine the liberation struggle of ANC. Present leaders stood steadfastly stood united to lead their campaign to win freedom. They are best placed to understand the dubious methods of Sri Lankan leaders to reward the alleged war criminals in order to encourage those in the military to be brutal and inhuman to the civilians already suffered enough.
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  • Pillai says: 
8 DECEMBER, 2012 AT 2:50 AM 
Sri Lankan government rewards retired officers of armed forces with plum after-retirement jobs. This ensures unbridled loyalty. The contribution by those posted overseas turned out to be very mediocre – to put it mildly. Shavendra Silva is not an exception – his performance as Deputy Permanent Representative to the UN was dismal. During the tenure with Lankan armed forces his battalion did commit war crimes before and during the last phase of the civil war. Lankan government is worried that the truth may emerge – hence the attempt to shift him to South Africa. Shavendra has several enemies in Sri Lankan government inner circle. Is is a welcome gesture that South Africa has refused to accept his appointment.
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8 DECEMBER, 2012 AT 3:12 AM 
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  • MANGO says: 
8 DECEMBER, 2012 AT 11:17 AM 
if Maj Gen De Silva is a suspected ‘war criminal’, the writer of this piece of drivel, Alan Wallis, is a confirmed moron. ‘War criminal’ is a label given to any senior Sri Lanka army officer who was involved in destroying the LTTE, whose supporters have adopted human rights to roll back their defeat. 
I can live with the suffering and destruction, but it’s the whining I can’t stand.REPLY

Alan Wallis says: 
12 DECEMBER, 2012 AT 6:18 AM 
Acknowledging the commission of human rights violations on both sides of the Sri Lankan conflict is a given, and efforts at accountability must address all violations of human rights, regardless of who the perpetrator is. The fact remains that where there are credible allegations of international crimes, the law must be allowed to take its course in an open and transparent manner. High ranking officers, by virtue of their position of authority, are responsible for the conduct of those under their command. This is an accepted principle of international law. Allegations are not an indication of guilt, but where those allegations are not properly investigated in an independent and impartial manner because the individual involved is a high level government official, it will only hinder the ability of all involved and affected from moving forward.

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