Use or Abuse of Diplomatic immunity?: A critical analysis of International law on Diplomatic and consular Asylum

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Use or Abuse of Diplomatic immunity?: A critical analysis of International law on Diplomatic and consular Asylum

 

Abstract

The British government voiced its yearning to finish the impasse over an absconder who skipped bail and sought asylum in the Ecuadorean embassy in London in August 2012, the British government purportedly threatened that it would storm the embassy to arrest the fugitive. This case of Julian Assange led to a huge controversy surrounding the application of International law in Diplomatic Asylum cases. This essay provides a critical analysis of Vienna Convention on Diplomatic Relations, 1961. It provides a detailed analysis of Immunities & Privileges available to diplomatic agents from Civil & Criminal jurisdiction of the Courts of Receiving State. It also discusses in depth the Abuse of diplomatic immunity in civil and criminal cases both. It provides a holistic approach towards understanding of International law concerning Diplomat and Consular Immunity.

 

Diplomacy is a form of communication between two parties and this is the sole way through which international relations can be maintained. Hence, the rules concerning the regulation of diplomatic relations are considered one of the earliest expressions of international law. Diplomatic immunity is a principle of international law by which certain government officials are not subjected to the jurisdiction of local courts and other higher authorities. It is to a great extent that in order to carry on diplomatic relations between different nations, a special body of diplomatic law is of utmost necessity. Thus, post the adoption if the Vienna Convention on Diplomatic Relations in 1961, the codification and liberalization from the age-old practices, customs and treaties governing the body of diplomatic law and its relations.

Diplomatic immunity has been designed in such a way so as to protect the diplomatic channels of communication by absolving diplomats from local jurisdiction in order that they can perform their duties independently, with complete security and non-intervention from external authorities. It is not for personal benefit of individuals; it is solely for the resolve that foreign officials can do their work. Since the concept of reciprocity applies, diplomats who are assigned to work in any country in the world benefit equally from the concept of diplomatic immunity.

The Vienna Convention on Diplomatic Relations, 1961 and the Vienna Convention on Consular Relations, 1963 led to the codification of most of the modern diplomatic and consular practices, inclusive of diplomatic immunity. These conventions provide immunity to persons in accordance with their rank in a particular diplomatic mission or consular post and according to the requirement of immunity in performing their responsibilities. Indeed diplomats are relieved from the civil, criminal, and administrative jurisdiction of the sending state. However, their host country might waive this exception. Furthermore, a diplomat’s immunity from the jurisdiction of the sending state does not absolve him or her from the jurisdiction of his or her homeland. It is also on the discretion of the sending state to declare a diplomat persona non grata and he or she can be terminated from his or her mission following inappropriate action in a mission on the part of the diplomat and the host country is not under any obligation explain such expulsion. The Vienna Convention on Diplomatic Relations also provides specific guidelines to be adhered to in case of violation or abuse of diplomatic immunity, which happens in a rampant manner. Also, till date, no nation has objected to the provisions entailed under the Convention and no proposals have come forward for rescinding the provisions of the same.

 In this essay, the author aims to discuss the situations, which led to the creation of the Vienna Convention on Diplomatic Relations and the laws that have evolved post the Convention. Also, this essay will highlight the immunities and privileges that diplomatic agents are subject to as a result of their job and their exemption from civil and criminal jurisdiction of the receiving state. The violations or abuse of the diplomatic immunities form the later part of this essay.

 

 

 

The law of Diplomatic relations has a checkered past, with the theoretical basis for diplomatic immunity provided for the envoys of sovereign states changing with the development in trade, commerce and communication between states. The increasing need for peaceful coexistence over war and conquest boosted the growth of the law for diplomatic relations. The transition from practices like sending priests as envoys, to the modern day manifestation of placing diplomats best -suited for the job has been a historical one. The same transition in practice can also be attributed to the changing theoretical perception of the need to provide privileges and immunities to diplomats.

1.1 Theoretical Basis and the Making of the Vienna Convention on Diplomatic Relations

One of the leading philosophers of his time, Hugo Grotius propounded that diplomatic immunity was based on the “sacredness of ambassadors”. He was of the view that causing harm to diplomats would be unjust and impious. Grotius cited various sacred texts to prove his theory. Further, Hugo Grotius also put forth the theory of “extraterritoriality”, of the theory of quasi extra territorium, as if outside the territory. This theory provides that, even when a diplomat is physically located in another state, for all purposes he should be treated as though he were residing in his home nation. Another theory on diplomatic relations is that the diplomat is the personification of the sovereign. The theory of personification of the sovereign has now evolved into the functional necessity theory, which posits that diplomatic immunity must be accorded to a diplomat to facilitate him/her to effectively serve his purpose. The Vienna Convention on Diplomatic Relations (VCDR), has also accepted this theory in its preamble, as one of the most important reasons for the existence of diplomatic immunities.[1]

One of the earliest efforts to bring a certainty into the treatment of a Diplomat was the English Diplomatic Privileges Act, 1708, more popularly known as the “Act of Anne”, which prevented ambassadors from other states from arrests and civil suits. Apart from a domestic law, the attempts to bringing about a universal understanding on the role of an envoy can be seen in treaties like the Anglo- Portuguese Treaty, 1809 and the treaty between the Ottoman Empire and the British Empire in the 17th Century. There has also been advancement in the judicial understanding of the concept of diplomatic privileges and immunities. This is reflected in the plethora of judicial precedents from varied jurisdictions.

The case of Respublica v. De Longchamps[2], the American court held that assaulting of the Consul General of France was in grave breach of the law of nations. This case was a precedent for cases dealing with diplomatic immunities and privileges.

In this prevailing scenario of confusion on the legal position of diplomats, world leaders looked for a definite direction to proceed on the treatment of envoys. The first attempt to codify law on diplomatic relations took place in the Congress of Vienna, 1815. The main object of the congress was to bring peace to the European mainland, after the French revolution and the Napoleonic wars. But some decisions were also taken regarding the provision of immunities to diplomats. The major contribution of the Congress can be said to be in the attempt to codify the classifications and order of precedence of diplomats. This codification, better known as the ‘Regulation of Vienna’, was, subject to a few modifications, incorporated in the provisions of Article 14 to Article 18 of the Vienna Convention on Diplomatic Relations, 1961.[3]

The next major effort towards this direction can be noticed nearly a century later, in the Convention on Diplomatic Officers, 1928, in Havana. This was a convention primarily between American states. The convention recognizes that diplomats represent the government of the other country, and never the person in chief.[4] This Havana convention can be said to be the stepping stone for the Vienna Convention on Diplomatic Relations.

The Vienna Convention on Diplomatic Relations [VCDR] was adopted due to the efforts of the International Law Commission [ILC]. The ILC’s recommendations were accepted during the United Nations Conference in Diplomatic Intercourse and immunities, at Vienna.[5]

VCDR is now accepted by most states as the standard for provision of immunities and privileges to diplomats. The practice under the VCDR if that when an ambassador has been appointed by the sending state, the individual would have to carry certain official papers, known as the Letters of Credence, which are for remission of the receiving state. These letters contain the credentials of the envoy, to be examined by the receiving state.[6] A receiving state may refuse to accept an envoy of the sending state.[7] Academicians classify this action of the receiving state on two grounds, either: (a) in respect to a particular mission of negotiations; or (b) because a particular envoy is not personally acceptable.[8]

The law on Diplomatic relations has been accepted and interpreted even by the International Court of Justice. In the case of the United States Diplomatic and Consular Staff in Tehran[9], the International Court of Justice described the rules of diplomatic law as “a self-contained regime which, on the one hand, lays down the receiving state’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving state to counter any such abuse[10]

1.2 Rights, Privileges and Immunities of Diplomatic Envoys

The Vienna Convention Articles 20 to 41 of the Vienna Convention on Diplomatic Relations provides certain rights, privileges and immunities to diplomats with the primary objective to ensure the efficient performance of the functions of the diplomatic mission.[11] Perhaps the most important and oldest rule of diplomatic immunity is enshrined within the Vienna Convention in Article 29. This particular article deals with the rule of inviolability, which is the basic premise above which any other immunity is built.[12]

The concept of immunity and inviolability do not simply mean that a court for the offences they allegedly commit cannot convict diplomatic agents.[13] They are also immune from the law enforcement activities of the agents of the state itself.[14] The concept of inviolability also attaches to the legation premises and the archives and documents of the legation.[15] This concept of inviolability of the premises of a diplomatic mission and the correlative duty of the receiving state to protect the premises, and the documents and archives of the mission, as well as the receiving state’s obligation to protect the personnel of the mission has also been upheld by the ICJ.[16]

Apart from the inviolability of the premises, the Convention also mandates the receiving state to provide full facilities for a mission to perform its functions[17], freedom of movement to the diplomats[18], free communication with the government of the sending state[19] subject to a few restrictions and regulations, and exemption from all dues and taxes[20].

Apart from these, the convention also offers various Civil and Criminal jurisdictional immunities, which will be dealt in greater detail in the following chapters.

1.3 Developments Post the Vienna Convention

The adoption of the Vienna Convention on Diplomatic Relations was perhaps the benchmark convention for diplomatic immunities, but this did not there the increase in serious crimes that were being committed against diplomats in the receiving state. The reason for this was that the Vienna Convention did not mandate for the criminalization of attack on diplomats in the receiving state, it merely created an obligation to protect.

In 1973, the United Nations Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, came into being to criminalize and curb attacks on diplomats and other protected persons within the receiving state.[21] Another reason for this convention was to reduce the attacks by non-state actors such as terrorists and insurgents against Diplomats. The convention presents a workable scheme for the apprehension and punishment of persons engaging in criminal activities against diplomatic agents only to the extent to which the convention does not embrace the concept of a bona fide politically motivated crime.[22]

The Vienna Convention has also led to states adopting individual legislations which protect diplomats, for example, the Diplomatic Relations Act, 1978 of the United States, The Diplomatic Relations (Vienna Conventions) Act, 1972 of the Republic of India and the Diplomatic Immunities and Privileges Act, 2001 of the Republic of South Africa.

In conclusion, it can be said that the evolution of diplomatic laws from few sovereign states to a set standard of privileges and immunities provided to foreign envoys followed by the International community by way of acceptance to the International Conventions and Agreements adopted by them individually. But the threat to Diplomats yet remains, from agents over whom even the receiving state no power, for instance the recent attack on the American Embassy in Libya,[23] or the assault on the Indian Embassy in Afghanistan.[24] The rule on Diplomatic Relations has a long way to go, with the non-state actors posing serious questioning the existing framework of the law.

 

 

 

 

 

 

 

 

There exist two types of immunities from jurisdiction granted by the Vienna Convention on Diplomatic Relations, 1961. The two types are the immunity from Civil Jurisdiction [2.1] and the immunity from Criminal Jurisdiction [2.2].

2.1 Diplomatic Immunity from Civil Jurisdiction

Immunity from civil jurisdiction developed at a comparatively slower pace than the same from criminal jurisdiction, but the concept of state practice emerged in the eighteenth century.[25] Such immunity developed from the fact that the State was not authorized to control whether the initiation of civil action can be brought against the concerned diplomatic agent or not. Civil suits can be brought before the notice of the court by the multitude, whereas in order that the court proceedings are initiated, it is dependent on the working of the public authority. Hence, on considering the ramifications resulting out of these issues, immunity from civil jurisdiction was designed in keeping with the fact that there is no injury caused by the private suits to external relations of the receiving state. It is opined by most authors that there should be reasonable restrictions on the idea of diplomatic immunity, but then it was court practice to adhere to the line of absolute immunity, with particular focus in this respect to commercial and professional activity. It was not until the Vienna Convention on Diplomatic Relations that there were clear stipulations on the imposition of diplomatic immunity. Three definitive restrictions were imposed on the immunity from civil jurisdiction. Article 31(1) of the Vienna Convention on Diplomatic Relations talks about a diplomatic agent who is to be immune to civil action against him, except in the following circumstances:

  1. A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; 
  2. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; 
  3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.[26]

The aforementioned exceptions are not very relevant considering the fact that they are not reflective of the conclusively proved international law, but they can be regarded as important for three reasons. Firstly, if the receiving state was not bestowed with the jurisdiction of such cases, these cases would not be scrutinized as the opportunity of examining it would be practically absurd for the courts to delve into the cases in some other place. Secondly, such cases, being essentially of a private character, do not involve or have connection with the official duties of a diplomatic agent. Finally, such cases are not inclusive of criminal or penal proceedings or incarceration, which might hamper the official duties of the agent.

There can be a number of situations wherein recourse to initiation of a civil action against a diplomatic agent may arise, namely, non-payment of debts or a trader’s bill for commodities supplied for the purpose of personal utilization, restoration of hire charges or bills for repair or reimbursement for any damage caused due to motor car accidents to a person or property or any other loss or defaults thereof.[27]  Such cases do not find the availability of judicial measures and the person who is an injured party to these cases have to avail the services of the Ministry of Foreign Affairs to act as the mediator in the disagreement. The ministry has the authority to implore the person heading the mission and facilitate the mediation of the dispute. Under almost all circumstances, the diplomatic agent will want to preserve his or her reputation in both the sending and the receiving State and hence, there will be no objection from his or her side as to the settlement of the controversy. However, if there is any kind of objection from the diplomatic agent in this respect or he or she refuses to compromise, serious steps can be taken against him and he can be recalled or his immunity can be relinquished.

There is also an incidental anomaly with respect to the diplomatic immunity from civil jurisdiction of the receiving state. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.[28] It is an assumption that once the diplomatic agent initiates proceedings, he is submitting himself to the possibility of a full and thorough scrutiny of the case. He or she should also consider the possibility of the submission of a counter-claim from the side of the defendant and also that the defendant also has the right to certain privileges and he or she cannot be deprived of those rights and should be allowed to defend his or her interests. The defendant must also be directly connected with the points contained in the principal claim. For instance, it was held by an English Court that when the diplomatic agent claimed money or damages from the defendant, he did not submit himself to a counter-claim made by the latter to charges of defamation.[29] A counter-claim is permissible only when the diplomatic agent institutes the proceedings; he being only a witness or expert, for example, is not sufficient.[30]

2.1.1 Exception in case of Private Immovable Property

This exception has been a plausible point of acceptance for a long time by many authors and has been followed in an analogous manner by many states but states such as the United Kingdom and France were not approving of the exception. Also, it is with congruity with the universal theory that every state must have absolute jurisdiction over its immovable property, which is the ‘very substratum of national territory’.[31] This anomaly is also not very easy to resolve because of the fact that in spite of studying travaux préparatoires and other sources, this exception remains ambiguous.

It was asked of the Dutch Court in the Deputy Registrar case[32]to give and order of eviction for regaining complete control of a property that had been led to the Deputy Registrar of the International Court of Justice. Article 31 (1) (a) was evaluated as it was believed to be reflective of customary international law and that an eviction within the ambit of the court. However, whether a court has the authority or chance to hear an application for eviction depends on the prevalent national legal system.

The exception under discussion is not inclusive of actions of recovery of rent or performance of other obligations arising out of ownership or possession of immovable property. It was however, found in a leading judgment that claims for rental charges and other costs were not involving real action and hence, the previous judgments were in violation of Article 31(1).

The abovementioned exception is not applicable to private immovable property in the receiving State held by the diplomatic agent of the sending state for the purpose of the mission. A relevant question which the Vienna Convention on Diplomatic Relations and even customary International Law has failed to answer is that whether the principal private residence of a diplomatic agent within this exception. The answer lies in the choice of arguments. On one hand, if it is ensured that the diplomatic agent enjoys complete independence from the receiving state and is able to exercise his official functions, then his or her private residence should fall within the purview of absolute immunity from civil jurisdiction.

The court practice post the Vienna Convention supports the idea of non-immunity of the private residence from civil jurisdiction on an equal footing. It is more pertinent to assert that local courts have the authority to exercise jurisdiction over private residences situated in the territory of the receiving state.

2.1.2 Exception in case of Private Involvement in Succession

A diplomatic agent, in performing his consular functions, becomes involved in matters relating to succession in his official capacity. In performing these duties, the agent is able to enjoy immunity from civil jurisdiction.

Such an exception involves a progressive approach to diplomatic law and also, court practice has been evolved to guarantee all kinds of immunity to diplomatic agents relating to involvement in succession matters. Thus, this exception is the least cumbersome and problematic among the three exceptions.

2.1.3 Exception in the case of Private Professional or Commercial Activity

Diplomatic agents have the accountability of not practicing for the purpose of personal profit any kind of professional or commercial activity in the receiving state.[33] This provision aims primarily at limiting his activities to his official duties and not allowing furtherance to his private interests.[34]

This exception is of importance in cases wherein the receiving state has taken the liberty of overlooking the prohibition under Article 42. This exception intends to assure that persons with whom the diplomatic agent has had professional or commercial relations is not deprived of any form of remedy. The receiving state can declare the diplomatic agent persona non grata if he decides on breaching the provision, but then this is not much relief to those who have been affected through the transactions with the agent. Thus, there should be a check on the activities of the diplomatic agent in order to curb any kind of malpractices in the commercial or professional circuit arising out of those activities.

2.2. Diplomatic Immunity from Criminal Jurisdiction

It can be said that diplomatic immunity from criminal jurisdiction is indubitable and unqualified whereas there are exceptions in cases of civil and administrative jurisdiction. Most of the courts as well as the commentators of this subject are in support of absolute immunity from criminal prosecution for diplomatic agents. It is the contention of many commentators that as per the theoretical and practical aspect of international law, diplomatic agents may not be tried or prosecuted in courts of criminal judicature. Immunity from criminal jurisdiction is derived from the theory of functional necessity that there should be free and uninterrupted relations between nations and that public order should be maintained. Article 31 paragraph 1 of the Vienna Convention on Diplomatic Relations states, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state.” This immunity extends to all kinds of petty offences along with indictable crimes beginning with minor transgressions of the law with respect to traffic regulations and ending with crimes like conspiring against the national security of the receiving state or delinquencies against humanity.

Research shows that there are two kinds of immunity with respect to the criminal jurisdiction, namely, immunity ratione personae [2.2.1] which relates to with the broad ambit of the conduct of the concerned official, and immunity ratione materiae [2.2.2] which corresponds to the limit of those acts performed while discharging functions. The former immunity is concerned with the status of the person whereas the latter looks into the conduct.

2.2.1 Immunity ratione personae

This is characterized by the broad scope it encompasses and that it is given to a limited number of officials, more importantly, the heads of State while they are in office. Even though it can be found that there exists an adequate amount of State practice with respect to issues concerning civil suits, criminal process concerned with the immunity before domestic jurisdictions has not been frequent. It should be noted that the primary issue of the Arrest Warrant case entailed the concept of immunity ratione personae. In the Arrest Warrant case, the International Court of Justice stated that “in international law it is firmly established that…certain holders of high-ranking office in a State, such as Head of State…enjoy immunities from jurisdiction in other states, both civil and criminal.”[35] In this case, the judgment contained an important pronouncement which safeguards the immunity ratione personae of the heads of Government and ministers of foreign affairs:

 “In international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other states, both civil and criminal.” [36]

Both sides in the case of Djibouti v. France before the International Court of Justice recognized the immunity ratione persona of a Head of State. The court, in a recent judgment, reaffirmed the “full immunity from criminal jurisdiction and inviolability” of a head of State.

It is a suggestion that other high-ranking officials, more particularly, other ministers and ministers of the cabinet would be able to enjoy immunity ratione personae from foreign criminal jurisdiction while they are in office. As regards to the major acts, immunity ratione personae with respect to foreign criminal jurisdiction covers all acts carried out by the concerned official and also deals with the conduct of the official in his private capacity or in his capacity preceding his term of office.

2.2.2 Immunity ratione materiae

In contrast to immunity ratione personae dealt with earlier, immunity ratione materiae deals with the act or conduct of the State officials in the discharge of their functions. The limitation of the extent of this immunity remains unquestioned as per literature and has been confirmed by domestic courts.

There is substantial question as to whether immunity ratione materiae covers crimes under international law. As mentioned above, the Arrest Warrant case, it was held by the International Court of Justice that immunity from criminal jurisdiction of the office of a foreign minister is not to be subjected to any kind of exception from commission of crimes under international law. Nevertheless, the court did not hint at the question of the possibility of an exception in the case of immunity ratione materiae of a former minister of external affairs. However, the court’s judgment holds an obiter dictum, which is implicit in contradicting the existence of an exception in this regard.

The juridical aftermath of diplomatic immunity from criminal jurisdiction is procedural in nature and does not impinge on the latent substantive liability. Hence, whenever it is proved that there is diplomatic immunity the court must drop all proceedings against the concerned defendant. The diplomatic agent is invulnerable to any form of execution and he can use this to his advantage to preclude any kind of judgment or conviction against him.[37]

Although all proceedings against the diplomatic agent may be subjected to suspension during the period of entitlement of diplomatic immunity, it does not mean that the proceedings be deemed as null and void.

 

 

Diplomatic immunity as a concept originated out of customary principles of international law. Its origin can be traced for the purpose of protection of representatives of foreign governments in a country from possible retaliation in case of international conflicts and to promote international relations. After all, the whole purpose of diplomatic immunity is to keep foreign diplomats out of U.S. courts and to free their governments from the need to go to court to defend them.[38] However, today the diplomats along with their families, servants, and other staff members abuse this privilege for escaping the prosecution from a variety of offenses. The main division of abuses of diplomatic immunity can be done between abuses regarding civil [3.1] and criminal acts [3.2].

 

3.1 Abuses in case of civil liability

Diplomatic immunity also allows the diplomats to escape from civil liability in cases of personal injury. The diplomatic immunity has now evolved more into a loophole to prevent diplomats from paying damages and fines, which they would have to pay in its absence. Diplomats and the offices in which they work are collectively referred to as a diplomatic mission. Creditors do not have the right to sue missions individually to get back money they owe. Thus, a person is left right less in case a diplomat refuses to pay the rent or any kind of debt back to the creditor. For this reason, it has been observed that the financial institutions do not extend any kinds of credit to diplomats, as they have no legal means to ensure the recovery. Diplomats are also exempted from import duty for items for their personal use. This has, in some countries, led to charges that diplomatic agents are profiting personally by reselling the "tax free" goods. Another problem with diplomats is the difficulty in enforcing of ordinary laws such as prohibitions on double parking. Thus, it has been observed that the diplomats do not pay parking fines, debts, and other forms of taxes and they cannot be sued for the same.

 

3.2 Abuses through criminal act

Abuses of diplomatic immunities relating to criminal liabilities can mainly be divided into two main categories.[39] The first category relates to using diplomatic bag to smuggle goods either into or out of the receiving state [3.2.1] and the second category related to the crimes that have been committed by the diplomats themselves [3.2.2].

 

3.2.1 Category 1: Using Diplomat related props to smuggle goods

It was in year 2011, when two Polish embassy’s employees were found with a contraband cargo while attempting to cross the Belarus-Polish border. The cargo contained around 100,000 cigarettes and was hidden in a car having a diplomatic plate. It has been alleged that the smugglers were aiming to make profit due to difference in rates of cigarette in Russia and EU. [40]

A Venezuelan general was arrested on charges of smuggling drugs in Aruba, but was released soon when the Venezuelan government protested against this act. The Venezuelan government raised the issue of his diplomatic immunity and threatened sanctions in case Aruba did not release him.[41] Diplomats and officials who are involved in drug smuggling have thus been benefited from diplomatic immunity. Such instances are common and can be found in almost every country. Use of diplomatic boxes, cars and other official objects for smuggling has become really common. Also, in most of the cases, the diplomats are not punished for the same by the receiving state, due to international laws, and by the sending state, because they do not want to.

3.2.2 Category 2: Crimes committed by diplomats themselves

It has been observed that the diplomatic agents, on many occasions, have acted as principal perpetrators. There are no statistics to support the claim and no comprehensive study has been done to determine the sheer number of crimes that have been committed by those who are protected by diplomatic immunity. However, several cases have come up recently which support the claim that the crimes committed in such a case are unprecedented. The following are a few instances from the same.

Paris Iraq Gunfire Incident[42]

This incident occurred in Paris in 1978. A policeman who was escorting a Palestinian from their embassy was killed by a gunshot, which was fired from the Iraqi Embassy. A huge controversy raged over this gunshot, but the culprits had to be let away. The French President's spokesperson publicly acknowledged the gravity of the crime but stated that the suspects were covered by diplomatic immunity. The only thing that the French government did was to make a request to the Iraqi government to put the three suspects on trial.

 

Sri Lanka Burma pyre Incident[43]

The Burmese Ambassador to Sri Lanka in 1979, got infuriated by seeing his wife getting out of the car of a night club band member. The next day, neighbors around the embassy noticed the ambassador building a pyre on the back lawn of the embassy.  The police were prevented from entering the embassy as the diplomat claimed that this was a part of Burmese territory. He later placed his wife’s corpse on the pyre and set it alight.

 

United States Brazilian Gunfire Incident [44]

In 1982, Brazilian Ambassador’s grandson shot an American citizen outside a local club. The victim filed the suit against the ambassador and the country. These charges were dismissed on the grounds of public immunity.

 

US Guatemalan kidnapping Incident [45]

Two Guatemalan Diplomats were involved in 1983 in kidnapping of wife of El Salvador's former ambassador to the United States in 1983. She went missing from her home in Florida and was held for1.5million dollar, which the kidnappers called as a "war tax." The diplomats who were involved in the case were taken into custody but only after the State Department, was successful in negotiating with the Guatemalan Government for the waiver of their diplomatic immunity.

 

United states North Korea sexual assault Incident [46]

Nam Chol, a North Korean diplomat was allegedly accused of assaulting a woman in a park I n New York in the year 1983. He was under the protection of North Korean Embassy for 10 months. He was forced out of the embassy when his senior was threatened for expulsion. Post this Mr. Chol surrendered to the authorities who ordered him to leave the country.

 

London Libyan "People's Bureau" Incident [47]

One of the prime cases that the world has witnessed in the recent time is that which happened on April 17, 1984 at the London Libyan "People's Bureau". A group of Libyan protestors opposing Colonel Muammar el-Qaddafi, the Libyan Leader, were protesting the leader’s treatment to students in Libya before the People’s Bureau. The protest was a peaceful one but suddenly the crowd was struck by machine gun fire coming from the bureau. More than ten persons were injured, and five were injured seriously. The gun fire also killed one police officer who was controlling the protestors. The British Police surrounded the Bureau so as to prevent any entry or exit from there. The British Home Secretary demanded that Libya should allow the British police to enter the building to gather evidences and to find suspects. The Libyan officials rejected this demand. The Libyan Government claimed diplomatic immunity for each and every embassy occupants and the British Government declared the diplomats as persona non grata and expelled them. The British Government also broke off relations with Libya and this was all it could do under the Vienna Convention.

 

Britain Nigerian Kidnapping Incident [48]

This incident also occurred in Britain and is related to an ex-member of the former Nigerian government, Alhaji Umaru Dikko. Mr. Dikko was kidnapped from his London house and was drugged and hidden in a diplomatic crate bound to Nigeria in the year 1984.

The accused involved in the kidnapping were also hidden in the crate. When the British government wanted to take an action, the Nigerian government refused to cooperate. All that the British Britain could do was to expel the diplomats involved with the incident of kidnapping.

 

United States Zimbabwe Child abuse Incident [49]

In 1987 Karamba, a commercial attach of the Zimbabwean mission to UN, was accused of severely abusing his children. Though, the US did not charge him with any crime due to his diplomatic immunity, he was sent back to Zimbabwe as soon as possible.

 

Romania US marine hit and run Incident [50]

In 2004, Christopher van Gothem, an American marine working with the embassy, collided with a taxi and killed a musician in Bucharest, Romania. His blood alcohol content was higher than the permitted limits when tested from a breath analyzer. He refused to provide a blood sample for further testing and rushed back to US before charges could be framed against him.

 

US India Incident [51]

In 2013, an Indian consular official Devyani Khobragade was accused of allegations regarding non-payment of U.S. minimum wages and for fraudulently lying about the wages to be paid on a visa application for her domestic worker. Thorough investigation started against her and she was detained, strip-searched and held in a prison in New York. India registered a strong protest against this investigation process and initiated a review of privileges provided to American consular officials in India as a result.

 

These cases are a few of the many-recorded instances when the diplomatic immunity provided by the international law has been thoroughly misused by the ones holding it. These are not a comprehensive list of instances, but these do shed some light over the current scenario. Diplomatic immunity has been providing a loophole for diplomats to first commit a crime and then run away from the consequences of the same. The hands of the receiving state are tied and in most of the case they are unable to proceed with any kind of action against the perpetrators. The receiving state may try to take help from the sending states, but this is also most of the times futile. Even if the diplomats are sent back to the sending state, the sending states most of the time do not take cognizance of the crime and thus, the diplomats are not punished for their acts.

 

 

The laws on Diplomatic immunity have been fluctuating over the years, with no definite internationally accepted codified law in place. While the Vienna Convention has largely identified and brought the importance of diplomats to the international for a, it is insufficient in scope and practice, as it does not involve crimes committed by insurgents or actors within the receiving state but are not in control of the receiving state. Further, the convention also does not make mandatory the enforcement of the articles prescribed, and no sanctions are imposed by the international community in case of violation of the terms of the Convention.

Many states have since adopted specific domestic legislations, which seek to provide criminal and civil immunities and privileges to the envoys of the sending state. These civil immunities are diverse and varied, and there is no set standard for the immunities gives. There exist differences in the immunities provided by different receiving states. This sort of disparity is based on the political as well as societal growth of that particular state.

The criminal immunities provided are a more standardized between states as the violation of these legal rules would lead to a penalization by way of punishment. Such a punishments not only harm the diplomat, but also the reputation of the sending state. This usually involves a more aggressive reaction from the sending state, and is relatively more uniform world over.

In conclusion, it can be said that the law on diplomatic relations is highly dependent on a variety of external factors like the political scenario in individual states as well as stability between the relations between states. The United Nations is currently involved in the promotion of diplomacy and resolution of conflicts using the means of diplomacy.

Contemporary issues like the conflict in Syria, the failing states of Libya, Yemen and Egypt, the revolution in Ukraine, the North Korean defiance to the world order, the fight against Ebola, the war against insurgents like ISIL, the Taliban, Al-Qaeda, Boko Haram and many others, all necessitate a strong diplomatic system that can unite the international Community. Only a United world can overcome these problems of international consequence.

 

 

 

 

[1] Vienna Convention on Diplomatic Relations, April 18, 1961, 55 A.J.I.L. 1062 [hereinafter Vienna Convention]

[2]Respublica v. De Longchamps, 1 U.S. 111 (1784).

[3] Vienna Convention supra note 1, see art. 14-18

[4] Convention of Diplomatic Officers preamble, Feb.20, 1928, Official Documents, 22 Am. J Int.L. 3, 142-47 (1928)   

[5] Vienna Convention, supra note 1, see preamble

[6] Vienna Convention supra note 1, see art. 12

[7] Vienna Convention supra note 1, see art. 4

[8]Starke, Starke’s International Law 385 (Shearer I.A, 11th ed., 1994)

[9]United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ 3, (24 May) [hereinafter US Diplomatic staff in Tehran case]

[10]Id. At ¶45          

[11] Vienna Convention supra note 1, see preamble

[12] Vienna Convention supra note 1, see art. 29

[13] Jonathan Brown, Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations, 37 Int. and Comp. Quaterly 53, 73 (1988)

[14]Elieen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (1976)

[15] Vienna Convention supra note 1, see arts. 22 and 24

[16] US Diplomatic staff in Tehran case, supra note 9

[17] Vienna Convention supra note 1, see art. 25

[18] Vienna Convention supra note 1, see art. 26

[19] Vienna Convention supra note 1, see art. 27

[20] Vienna Convention supra note 1, see art. 28

[21] Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents preamble, Feb.20, 1977, 1035 U.N.T.S 167 

[22] Allen B Green, Convention on the Prevention and Punishment of Crimes against Diplomatic Agents and Other Internationally Protected Persons: An Analysis, 14 Vir. J. Int’l 703, 728 ( 1973- 1974)

[23] Chris McGreal, Benghazi attack: US officials look for answers over deadly consulate assault, The Guardian Feb 5th 2015, http://www.theguardian.com/world/2012/sep/12/benghazi-attack-us-official...

[24] Sanjay Kumar, Why Was India's Herat Consulate Attacked?, The Diplomat Feb 5th 2015, http://thediplomat.com/2014/05/why-was-indias-herat-consulate-attacked/

[25] Rene Vark, Diplomatic Agents, Civil Actions and Jurisdictional Immunity

[26] Vienna Convention supra note 1, see art. 31(1)

[27]Biswanath Sen, A Diplomat’s Handbook of International Law and Practice 144 (Martinus Nijhoff 3rd ed. 1988)

[28] Vienna Convention supra note 1, see art. 32(3)

[29]High Commissioner for India v. Ghosh (English Court of Appeal), 1 QB 134 (1960).

[30] See for example, Propend Finance Co. Ltd. V. Sing and the Commissioner of the Australian Federal Police, (English High Court), Times Law Reports, 2nd May, 1997.

[31]Yearbook of the International Law Commission, (2 vols. United Nations: New York, 1957), vol. II at 139.

[32]Deputy Registrar Case (District Court of the Netherlands) 94 Int. L. Rep (1994) 308.

[33] Vienna Convention supra note 1, see art. 42

[34] Charles J. Lewis, State and Diplomatic Immunity, at 131 (3rd ed. Lloyd’s of London Press 1990)

[35]Democratic Republic of the Congo v. Belgium, [2002] ICJ 1

[36] Id. ¶ 52

[37] Vienna Convention supra note 1, see art. 31

[38] David A. Jones, Jr. and Jonathan T. Fried, Diplomatic Immunity: Recent Developments in Law and Practice, 85 Am. Soc. In. L 17 (1991)

[39] Leslie Shirin Farhangi, Insuring Against Abuse of Diplomatic Immunity, 38 Stan. L.RVol. 6 (1986)

[40]Yuliya G. Zabyelina, The Untouchables: Transnational Organized Crime Behind Diplomatic Intercourse And Immunities, ., http://www.ecpr.eu/Filestore/PaperProposal/de38d92a-0ee5-4eed-89fb-32dd7... (last visited 06/02/2015)

[41] Netherlands Says Venezuelan Detained in Aruba Has Immunity, ., http://www.wsj.com/articles/netherlands-rules-venezuelan-detained-in-aru...

[42]Randy G Taylor, Shootout at the Iraqi Embassy in Paris, ., http://www.randytaylor.com/scrapbook/IraqiShootout.html

[43]Final Approaches: A Memoir by Gerald Hensley, (2006, Auckland University Press, NZ)

[44] Veronica L. Maginnis, Limiting Diplomatic Immunity: Lessons Learned From The 1946 Convention On The Privileges And Immunities Of The United Nations, 28 Brook. J. Int'l L. 989

[45]Leslie Maitland Werner , 4 More Held In Abduction Of Ex-Envoy's Wife, . http://www.nytimes.com/1983/07/16/world/4-more-held-in-abduction-of-ex-e...

[48]Adeoye Akinsanya, The Dikko Affair and Anglo-Nigerian Relations, 34 The Int. Com. L.Q 602 (1985)

[49]Court Won't Bar Return of Boy In Abuse Case to Zimbabwe, ., http://www.nytimes.com/1988/01/01/nyregion/court-won-t-bar-return-of-boy...

[50]Marine charged in Romanian rock star's death, ., http://www.utsandiego.com/uniontrib/20050421/news_1n21romania.html

[51]India's foreign minister: Drop charges against diplomat, ., http://edition.cnn.com/2013/12/20/politics/india-us-diplomat/ 

Author name-result: 
Rhythm Singh - Amity Lucknow (2015)

Topical and well researched

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