Diplomatic immunity is one of the most undisputable rules in international law

 

 

Many people are against diplomatic immunity. They say why ordinary people are punished when committing a crime and diplomats are not punished. Are they better than we are? Every time when some diplomat commits a crime or violates the law, the public debate over diplomatic immunity arises.

The concept of immunity is very old. It started with ancient tribes. When tribes wanted to exchange some information with each other, they had to send their messengers to the other tribes. But without immunity they could have been arrested or killed. That's why tribes agreed to create messengers immunity (diplomatic immunity). Nowadays diplomatic immunity is a principle of international law by which certain foreign government officials are not subject to the jurisdiction of local courts and other authorities. The Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963 codified most modern diplomatic and consular practices, including diplomatic immunity. About 160 countries are parties to these treaties. The Vienna Convention was adopted with belief that an international convention in diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among countries.

According to that convention the receiving State most protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. The premises of the mission, their furnishing and other property and the means of transport of the mission are immune from search, requisition, attachment or execution. (Vienna Convention on diplomatic relations, article 22, points 2 and 3) The article 26 says that the receiving state must ensure to all members of the mission freedom of movement and travel in its territory. The diplomatic bags are not allowed to be opened, searched or detained. So, if persons with diplomatic immunity wants to carry in their bags for example narcotics, they can do it. The article 27 point 4 says that the diplomatic bags may contain only diplomatic documents or articles intended for official use. But diplomatic bags can not be controlled because they can not be opened. Also personal bags of diplomatic agent are exempt from inspection unless there are serious grounds for presuming that it contains goods that are forbidden in the host country. The persons with diplomatic immunity also can not be arrested. They can not be arrested even if they have committed a crime. These persons are immune from the criminal jurisdiction of the receiving state and they are not obliged to give evidence as a witness. Only sending state can judge persons with diplomatic immunity. The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes. (Article 28)

The diplomatic immunity is important because in different countries the judicial system is very different and might be less protective of individual rights than in other countries or where unfriendly governments could use their police authorities to harass diplomats and their families. But after all the persons entitled to immunity must respect the laws and regulations of the host country. Immunity is not a licence to commit a crime.

The conventions provide immunity to persons according to their rank in a diplomatic mission or consular post and according to the need for immunity in performing their duties. Diplomatic agents and members of their immediate families are immune from all criminal prosecution and civil law suits. Administrative and technical staff members of embassies have a lower level of immunity than diplomatic agents and their family members. Consular officers have even lower immunity level and members of an embassy service staff and consular employees are immune only for acts performed as part of their official duties.

If a person with immunity commits a crime in some host country, this country advises his/her government of the committed crime and may request a waiver of the alleged offender's immunity so that person could be judged by court of the host country. But if the immunity is not waived, the host country may order the withdrawal of the offender from the country. If the member of diplomat's family have committed a crime, then entire family may be expelled.

The most common abuse of local laws by diplomats are parking violations and driving under the influence of alcohol. For example in United States sixteen-year old girl was killed by a diplomat's car. The driver was young Georgian diplomat who was driving drunk. Due to his diplomatic status, he was not given a breathalyser or blood test. After several days of diplomatic and political switches, Georgia decided to take the step of waiving immunity for its diplomat. When Georgian President Eduard Shevardnadze announced decision he said: " I cannot imagine diplomacy and politics devoid of moral principle". (Diplomatic Immunity: Human Foibles vs. needs of nations, Universal Press Syndicate, 1997) But there are also opposite examples. For example in 1993 the car of American attache killed an eleven year old Russian girl in Moscow. In that case the diplomatic immunity was not waived. Russians accused the American diplomat of driving while under influence of alcohol. But the United States determined he had not been drinking and decided it would be best to recall him home. The diplomat left Moscow in 36 hours after the accident. Even no disciplinary action was taken against that person. He remained in the foreign service.

Another case is with Nigerian diplomat who carried in his diplomatic bag narcotics. In customs he was revealed only because customs officers didn't see the external marks of diplomatic bag. But with diplomatic marks on the bag he would have entered the country with narcotics without any problem.

In 1992, Uganda's ambassador to Washington was implicated in an arms-purchasing and smuggling scheme to buy 400 anti-tank missiles. He was detained in Florida after a sting operation by customs agents. But he wasn't indicted because of his immunity. United States asked Uganda to lift his immunity, the envoy was recalled home.

But the situation isn't so bad as it seems. Great majority of persons entitled to some form of diplomatic immunity are law abiding people. Only few of them break laws. Unfortunately they draw the attention of the public and media. They damage the reputation of other persons with diplomatic immunity too. I think that diplomatic immunity is undisputable rule in international law. The diplomatic immunity must be undisputable rule because then every country in every situation, even in most critical (for example war, riots) can then be sure that the diplomats they sent are safe and their life and health is not in danger. If this rule would be disputable there would be no use of this rule. These rules are made to protect diplomats. They are not made for protection from crimes that some diplomats commit. Of course it is not fear that when person with diplomatic immunity commits a crime he or she is not punished. But I think that because of these few diplomats there is no need to abandon the diplomatic immunity. Other diplomats may suffer from it. It is a question of morality. If the crime is committed, the sender country should waive the diplomatic immunity from the person who committed that crime and he or she should be sent under the court of host country where the crime was committed. Good example here is Georgia. But unfortunately seems that some countries have lack of morality. For example United States of America. When crime is committed there, always public debate arises over diplomatic immunity. But their own diplomats are violating other countries laws as well. If all countries would waive the diplomatic immunity from the criminals the situations would be different.

 

 

 

Used literature:

    1. Ian Browlie 5th Edition (1998) Principle ff Public International Law. Oxford University Press. New York. Pages 730.
    2. Diplomatic Immunity: To Have or Not to Have, That Is The Question. Mark S. Zaid. http://nsulaw.nova.edu/Student/…
    3. ÜRO Põhikiri. Viini Lepingute Konventsioon
    4. Statement on Reform of Diplomatic Immunity. David Dreier. 1997. http://www.house.gov/dreier/dipimmist.htm
    5. Diplomatic Immunity? Sun-Herald, 21 April 1996
    6. Diplomatic Immunity. eDiplomat. http://www.ediplomat.com/main/immunity.htm
    7. Diplomatic Immunity: Human Foibles vs. Needs of Nations. Universal Press Syndicate 1997

Autor: Allen Matt

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