Southern Africa Litigation Centre (SALC), a non-profit group that promotes human rights and rule of law in South Africa, noting that South Africa’s President is constitutionally mandated, in terms of section 84(2)(h) of the Constitution, to either receive and recognize foreign diplomats or to decline the sending state’s request, and asserting that "[a]uthoritative and extensive information, including a high-level UN Secretary-General’s report, exists linking General Silva to the commission of war crimes and crimes against humanity during the Sri Lankan civil war," concludes "General Silva [as] ineligible for the nominated diplomatic post," and that South Africa is compelled to refuse to receive and recognize him as such." SALC said it has learnt that "South Africa has declined to receive General Silva, although there is no official confirmation of this."
"It [the rejection of Shavendra Silva] 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," SALC said in the web posting.
"Informed assessment of General Silva‟s suitability compels the conclusion that he is ineligible to take up an ambassadorial position in South Africa on account of the credible allegations against him that he participated in the commission of war crimes and crimes against humanity in Sri Lanka in 2009," SALC said.
In a legal briefing paper prepared to assist the President and the Department of International Relations and Cooperation (DIRCO) in assessing General Silva’s credentials and in reaching a considered determination, SALC highlights the legal implications of recognizing persons accused of war crimes and discusses the considerations that should inform decisions made in terms of section 84(2)(h), SALC said.
"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 [Sri Lanka] is one with a questionable human rights record," SALC said in the briefing paper.
The allegations of crimes against humanity and war crimes against General Silva require that the President and DIRCO evaluate his 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, the briefing paper said.
"Were General Silva to be received and recognised as deputy ambassador to South Africa, he would be conferred with diplomatic immunity. 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 General Silva would amount to an abuse of the internationally regulated system of diplomatic status," SALC cautioned.
SALC adds, "[m]oreover, by recognising and receiving General Silva, and in consequence recognising his diplomatic immunity, South Africa would render itself complicit in his impunity, frustrating efforts at accountability and denying justice to the victims of Sri Lanka‟s conflict. In so doing, South Africa would violate its own constitutional, domestic and international obligations."
Extensively quoting from Report of the Secretary General`s Panel of Experts on Accountability in Sri Lanka, the legal brief examined the conduct of Sri Lanka Army (SLA) 58th Division operating under Silva’s command was "explicitly linked in the UN Report to several of the most notorious violations of humanitarian law and human rights committed during the conflict."
The brief also said, after the war, "Navi Pillay, also expressed her concern to UN Secretary-General Ban Ki-moon over General Silva‟s appointment to this special advisory group, and in a letter stated "that there is, at the very least, the appearance of a case of international crimes to answer by Mr. Silva.""