Diplomatic Impunity? Why Suspected War Criminals should not be Diplomats

South Africa reportedly declined to receive Sri Lanka war crime suspect General Silva.

(JOHANNESBURG) - 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 (Southern Africa Litigation Centre) 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.