4.1 EFFECTS OF DIPLOMATIC IMMUNITY
The need to maintain an even tenor of state relationship, the concept of diplomatic immunity has become one of the most widely accepted and uncotraversial topic of international law. However not all states adhere to the stipulations. As the International Court noted in the US Diplomatic and Consular Staff in Tehran case, the rules of diplomatic law, in short, constitute a self-contained regime, bestowing to the receiving state obligations to be accorded to diplomats including, privileges, immunities and facilities while observing any possible abuse and act on it in line with the means at their disposal.
Drafters of the Vienna Convetion spirited the undisturbed functioning of diplomats from the receiving states authorities observing public order and protect the representatives from any legal proceeding that would hampler their functioning. In The schooner Exchange v M’Faddon, Chief Justice Marshall observed that a diplomat would be unable to function as a representative of his sending state if he was subject to continued appearances in the receiving state’s courts. More recently, two federal district courts have gone so far as to hold that requiring a diplomat to answer to private suits is a form of coercion (Arcaya v Paez) and an unjustifiable interference with the performance of his functions (Bergman v De Sieyes). The challenge faced by the states is to clearly articulate the concept of “all Appropriate Measures” given the opposing factor of immunities.
Diplomats duly appointed are immune to local laws and hence the local authorities are rendered powerless to exercise any authority over them hence causing more social problems. The general understanding is that diplomatic status does not in any way give diplomatic agents permission to violate the laws and regulations of the receiving state and the overwhelming majority of diplomats are indeed law obedient. Occasionally, diplomats have abused their privileged in instances like delayed of unpaid wages for domestic workers, drunk-driving which might cause an accident tend to accumulate disproportional amount of publicity as opposed to other similar cases, where the person concerned is without such special status, and therefore serve to prejudice public attitude toward the practice of personal inviolability and diplomatic immunity. However, there is a tendency of states refraining from serious retaliatory actions as the procedure of appointment, approval, placement and adaption is cumbersome and can lead to distortion of the already established way of performance.
Cases of domestic workers have been considered as irrelevant, not given a serious attention. Mistreatment, underpayment and inhuman living conditions against a diplomat are perceived as a mockery to the unemployed and the police staff in general. The diplomats continue to get protection for the immunity they enjoy and the sending states failure to notice and respond seem to encourage the behavior.
As noted by the German Institute of Human rights, in practice, the diplomatic immunity while dealing with employment contract supersedes the human rights of the employee leading to a de facto-unaccountability and impunity encouraging exploitation.
However, where states feel that the diplomats are really violating their diplomatic privileges; receiving states have taken strict measures against nations of the said diplomats which have had a far reaching negative effect in the international arena.
Examples of the effects of strained diplomatic relations are as follows:-
4.1 It destabilizes the international relations.
As much as there is a need to hold officials accountable for international crimes, there is an equally valid need to preserve immunity ratione personae (functional immunity) accorded to sitting heads of state or government and accredited diplomats. For these reasons, a balance must be struck between the needs of international criminal law and the necessity for immunities. If Article 27 of the Rome statute is to be effective, this balance must be realized.
4.2 Trade sanctions will be imposed.
Trade sanctions have been shown over the years to be ineffective. It may sometimes be better to maintain a dialogue with states which abuse the norms of diplomatic behaviour than to sever all contracts. The number of states who have abused the convention is small and each case would always have to be carefully assessed by Governments directly affected or contemplating sympathetic action.
4.3 Countries which are notorious in the abuse of the Vienna convention will be isolated.
The United Kingdom consulted a number of friendly governments on the problem of diplomatic abuse of immunity prior to the Libyan incident. Those governments indicated that the international community should concentrate on isolating those states which abuse the system. After the Libyan incident, Britain consulted several additional countries in an effort to find sanctions against Libya short of amending the Vienna Convention. Because the British Government believed that the shootings were an isolated incident and that other countries would not support amending the Vienna Convention, Britain focused on isolating countries rather than on amending the Convention. The support of the international community is crucial, for the level of cooperation necessary to isolate a nation that abused the system is extremely high. Specifically, the British proposal called for all the key western states who found abuse of the system repugnant to agree on common action, whatever that might be. The suggested action was to refuse as a group any diplomatic relations with the offending state. This proposal does not adequately consider Europe’s and America’s need for relations with these troublesome nations. Political instability and a tendency towards terrorism do not in themselves always warrant relinquishment of the benefits of diplomatic relations.
4.5.1 Diplomatic protection of citizens Abroad will also be destroyed
One of the primary duties and functions of a diplomat in Article 3(1) of the Vienna Convention of 1961 is to protect the interests of the nationals of his home state who may be resident or sojourning in the territories of the receiving state. The right of a state to afford protection to its citizens whilst they are abroad is a universally accepted canon of international law, and it is this right of his home state that a diplomatic agent exercises whilst looking after the interests of his co-nationals and making representations on their behalf to the government of the receiving state if they suffer harm or injury in the territories of that state. Consular officers are also authorized to exercise the right of protection in respect of their nationals by virtue of express provisions of treaties, customary rules of international law or the assurances of “most-favoured-nation” treatment.
4.1.2 Diplomatic asylum will be at stake
Diplomatic asylum is the asylum which a state grants to a fugitive in its embassy or legation situated within the territory of another state. Territorial sovereignty is a fundamental principle of international law. Diplomatic asylum derogates from the territorial sovereignty, since it withdraws the fugitive from the jurisdiction of the territorial state.
From the above discussions on the effects of diplomatic immunity and protection extended to diplomats in the Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations. One is left with mind blogging questions on the whole issue of diplomatic immunity and various issues surrounding the subject. Some of the questions are:-
4.2 Is diplomatic immunity absolute?
Diplomatic immunity is absolute. I would argue, though, that the general ignorance concerning what diplomatic immunity is, and whether such immunity extends to all acts of any nature committed by an individual, even if that individual does qualify as a diplomat. All other questions are a distraction. The concept of diplomatic rights was established in the mid-17th century in Europe and since then came gradually to be accepted throughout the world. These rights were formalized by the 1961 Vienna Convention on Diplomatic Relations, which protects diplomats from being persecuted or prosecuted while on a diplomatic mission.
However, if we examine the specific articles of that Vienna Convention of 1961, some interesting facts emerge.
First, Article 29 states that the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving or host state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity. But those, who demand the release of diplomats who have violated the convention by committing serious crimes like murder, human trafficking, grievous abuse of domestic worker just to mention but a few, on ground of diplomatic immunity, have obviously neglected to read, or don’t want others to read, the related articles within the Convention which strip away any absolute blanket coverage under the guise of “diplomatic immunity” for visiting or appointed diplomats.
Article 38 of the Vienna Convention 1961 states that except where additional privileges and immunities have been specifically granted by the host State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
Article 37 of the 1961 convention goes on to reinforce the above limitation on immunity by stating:
Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties.
To explain further, on the same issue, is the Vienna Convention on Consular Relations of 1963, the later treaty extends and further clarifies, that where there may be a conflict, it would supersede the earlier treaty. In Section II, Article 41 in its first paragraph regarding the “Personal inviolability of consular officers”:
In reality, whether a prosecution proceeds against a high-ranking foreign state representative will depend on many factors, political and legal, not least the particular features of the prosecuting state’s laws on jurisdiction and procedures. In most cases the issue of the defendant’s immunity is usually raised and considered by the national court concerned. In others, it appears to have been ignored or overlooked, and this factor may be of some significance given the approach taken by the International Court of Justice (ICJ) in the case concerning Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v France ). The ICJ suggested that, in the case of functional immunity, it is for the official’s home state to notify the state seeking to exercise jurisdiction and that the latter is not obliged to raise or consider the matter of its own accord . Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.
The law here would seem to be quite clear. If the accused person ‘diplomat’ was in the scene of crime on anything other than official consular business, and if he/she committed serious crimes i.e. murder, “in cold blood”, then legal authorities in the receiving state will be absolutely within their rights under the Vienna Conventions to be hold the ‘diplomat’ him for trial only after his diplomatic immunity has been waived.
If he/she is released before a judicial determination regarding his claim of immunity, or if he is found to be properly detained but is released anyhow before standing trial for the killings or serious crimes, it would be not because he has diplomatic immunity, but because of political pressure from his/her country or a state that has super powers, i.e. the US. But this would be something that is outside of the realm of the law.
This leads me to my other disturbing question;-
4.3 Is diplomatic immunity and protection on trial?
At a quick glance, this seems to be a pretty straight forward ‘yes’ and ‘no’ question. Many commentators have been tempted to jump to one side or another of the equation only sooner or later realize that any presumptuous conclusions, in favour of diplomatic immunity will be condoning impunity and against will destroying the whole goal international relations.
Diplomatic relations and the laws surrounding diplomatic immunity have freed many foreign diplomats serving around the world and have even saved lives but they have also given diplomats the notion that committing petty or even serious crimes is acceptable. Many countries have recently found themselves at an impasse while trying to cater to the rights of foreign political visitors, and still uphold the human rights of its citizens.
What is on trial is not diplomatic immunity but rather the two conventions which in most cases have prevented the prosecution of diplomats in the name that they enjoy diplomatic immunity.
5 Which law takes precedence between diplomatic immunity and human rights?
One may assert that human rights take precedence over diplomatic immunity in international law as they constitute a higher good.
4.8 Is diplomatic immunity unnecessary evil in the globe?
The key question surrounding diplomatic immunity and diplomatic studies is if diplomatic immunity is evil and should be done away with. The answer to the question is that diplomatic is necessary for the efficient functioning of foreign relations between states. However, limiting measures should be put in place to curb the numerous cases of abuse that continue to soar up. This could be done through some of the measures that have been previously recommended by a number of scholars such as amendment of the Vienna Convention on Diplomatic Relations, use of the functional necessity theory, bilateral treaties and formation of a permanent International Diplomatic Criminal Court.
4.9 Is diplomatic immunity necessary regardless of all the abuses being witnessed?
Diplomacy is essential to maintain international relation between two nations and for that the diplomats play an indispensible role. Diplomatic immunity is, therefore, necessary for the smooth delivery of the duties of the diplomats, and to grant them impunity from coercion, unjust pressurization and marginalization by the host nation. Simply put, if one nation can castigate the diplomats of another nation, then the reverse also holds good! Under such circumstances, diplomats would become mere pawns and diplomacy will be impossible.
Despite the noticeable abuses of diplomatic immunity, my submission is in the negative. An old Latinism has it thus, whenever there is a society, there should be law . By the same token, societal laws must be just and fair to all its subjects. Hence diplomatic law and diplomatic immunity should remain.
It is important that law enforcement and judicial authorities of the globe always treat foreign diplomatic and consular personnel with respect and with due regard for the privileges and immunities to which they are entitled under international law. Any failure to do so has the potential of casting doubt on the commitment of the sovereign countries to carry out their international obligations or of negatively influencing larger foreign policy interests. However, appropriate caution should not become a total “hands off’ attitude in connection with criminal law enforcement actions involving diplomats.