The U.S. State Department’s announcement of a travel ban on Sri Lankan Lieutenant General Shavendra Silva, current commander of the Sri Lankan Army and acting chief of the Defense Staff, along with his immediate family, may hold implications for other Sri Lankan leaders who were directly involved in war crimes allegedly ordered by Silva. That includes the country’s current president, Gotabaya “Gota” Rajapaska, who was a U.S. citizen at the time the alleged war crimes took place during the country’s civil war that ended in 2009.
The Feb. 14 designation was made pursuant to the “Anti-Kleptocracy and Human Rights” provisions of Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act. The law provides in subsection (A):
Officials of foreign governments and their immediate family members about whom the Secretary of State has credible information have been involved in significant corruption, including corruption related to the extraction of natural resources, or a gross violation of human rights shall be ineligible for entry into the United States.
In announcing the travel restrictions in a statement from Secretary of State Mike Pompeo, the department said the designation was based on “credible information of his involvement, through command responsibility, in gross violations of human rights, namely extrajudicial killings, by the 58th Division of the Sri Lanka Army during the final phase of Sri Lanka’s Civil War in 2009.”
Allegations Against Silva
Silva has faced allegations of participating in atrocities on various fronts during the latter stages of the war, which pitted his government forces against the Liberation Tigers of Tamil Eelam (LTTE) that ended in the brutal defeat of the Tigers. The International Truth and Justice Project has amassed a 137-page dossier documenting Silva’s roles in the civil war and a variety of alleged war crimes, ranging from attacks on civilians and medical facilities, to the notorious executions of LTTE soldiers, along with their family members, including women and children, following their surrender.
In response to the news development, Just Security Executive Editor Beth Van Schaack said:
Allegations of war crimes have followed Silva for years. At the top of the list is his operational role in brutally bringing the country’s civil war to a close, which involved the shelling of Tamil civilians trapped in so-called No Fire Zones on the front lines and the execution of surrendering Tamil Tigers, known as the “white flag incident.”
The longstanding allegations have not stopped Silva from continuing to wield considerable influence, both in Sri Lanka and abroad, for years following the end of the war. In 2012, Silva was appointed to a United Nations Special Advisory Group on Peacekeeping Operations, a panel tasked with advising then-Secretary-General Ban Ki-Moon. Amidst backlash against Silva’s appointment, he was removed from the panel within weeks of being named to it.
Later, troops under Silva’s control who were deployed to U.N. peacekeeping operations were accused of grave abuses, including the sexual abuse of children in Haiti. After Silva was appointed army chief, non-essential Sri Lankan troops were banned from participating in U.N. peacekeeping missions because of his dubious record.
Despite these continuing allegations and Sri Lanka’s 2015 pledges to the U.N. to pursue accountability for the commission of international crimes and human rights abuses, scant progress toward any form of meaningful accountability has been made. To the contrary, according to Van Schaack, “the government of Sri Lanka has responded to [Silva’s] depredations with promotions rather than prosecutions.”
Implications for Sri Lankan President Gota Rajapaksa
The State Department designation was somewhat unusual, given the lack of earlier signaling that such a decision was pending. That might mean there is more to come. The designation may have implications for politics and post-conflict justice in Sri Lanka, as Silva’s actions likely also incriminate recently elected Sri Lankan President Gota Rajapaksa in various international crimes.
“[N]ot only was [Rajapaska] the self-proclaimed mastermind of the military’s actions and thus criminally liable under well-settled international rules of command responsibility; there is also prima facie evidence in the public record that he ordered the execution of political leaders and their families upon their surrender, that he directed the systematic bombing of civilian hospitals, and that he repeatedly suggested that he could target and deliberately kill innocent civilians in order to win the war against the LTTE. That’s just the public record.”
Gota is alleged to have been the overall architect who ordered the commission of atrocity crimes at the top levels of command, as he helped oversee the brutal final phases of the war as defense minister to his brother, then-President Mahinda Rajapaksa (as discussed at length on Just Security here, here, and here). But it is Silva who is alleged to have received these commands and directly ordered units under his command to carry them out. Indeed, there is evidence tying Gota directly to Silva’s actions at the heart of the new travel ban. An army officer told Britain’s channel 4 in 2011, “The defence secretary phoned Brigadier Shavendra Silva and ordered him not to take them prisoner, but to kill them. … I can confidently state that those who ordered the killings were Defence Secretary Gotabaya Rajapaksa and Brigadier Shavendra Silva.”
As discussed in previous Just Security posts, Rajapaska theoretically could face criminal liability in U.S. Courts pursuant to the War Crimes Act of 1996 as he was a U.S. citizen during the time he is alleged to have participated war crimes (even though he renounced his U.S. citizenship in order to be eligible to run for president). Various civil lawsuits also were brought against Rajapaska in the United States, leading up to his election in November. As president, he currently enjoys head-of-state immunity. Silva was also sued in the U.S., but the case was dismissed because he was deemed entitled to diplomatic immunity.
When considered in light of the lack of apparent current avenues for prosecuting Silva (and Gota) for war crimes, the travel ban currently provides at least some small measure of accountability.