As the Saudi Arabian
embassy invokes the immunity clause for its diplomat accused of rape, herez a
writeup which explains each aspect of this DIPLOMATIC AFFAIR , the Vienna
Convention , its provisions and need to revisit it !!!
What is Diplomatic Immunity ?
The rules of diplomatic law enshrined in the Vienna
Convention have been described as ‘the cornerstone of the modern
international legal order.’ But the principle of diplomatic immunity dates
back far further than 1961. It is one of the oldest rules of international law.
Diplomatic immunity was well‐established by the end of the seventeenth century, evolving out of
the principles of equality of states and immunity of the sovereign, who was
said to embody the state.
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..
immunity protects the channels of diplomatic communication by exempting
diplomats from local jurisdiction so that they can perform their duties
with freedom, independence, and security.
the concept of reciprocity, diplomats assigned to any country in the world
benefit equally from diplomatic immunity.
Diplomatic immunity is given
as recognition of the sovereign independent status of the sending
State and of the public nature of the acts which render them not subject to the
jurisdiction of the receiving State; and
ii) as protection to the
diplomatic mission and staff to ensure their efficient performance of functions
free from interference from the receiving state.
The concept of diplomatic immunity from civil and criminal proceedings has established itself as a fundamental of customary diplomatic law. It is one of international law’s most successful and enduring rules, with 185 states currently recognising the rules of diplomacy as stated in the Vienna Convention of 1961.
Under the Convention,
- diplomats are not subject to arrest of detainment (Article 29);
- they are immune from the criminal jurisdiction of the receiving state (Article 31);
- immune from civil jurisdiction for acts committed within their official capacity (Article 31).
- family of the diplomatic agent enjoys the same immunity status (Article 37).
- mission‐staff also enjoy variable levels of immunity (Article 37).
Is this immunity the same for all diplomats?
- No. The Vienna Convention classifies diplomats according to their posting in the embassy, consular or international organisations such as the UN.
- A nation has only one embassy per foreign country, usually in the capital, but may have multiple consulate offices, generally in locations where many of its citizens live or visit. Diplomats posted in an embassy get immunity, along with his or her family members.
- While diplomats posted in consulates too get immunity, they can be prosecuted in case of serious crimes, that is, when a warrant is issued. Besides, their families don’t share that immunity.
Isn’t that what happened in the Devyani case?
- Yes. In December 2013, Devyani Khobragade, a deputy consul general at the Indian consulate in New York, had been arrested and reportedly strip-searched for alleged visa fraud on grounds that she did not honour the commitment to pay minimum wages as per US rules to her domestic help.
- Since she was a diplomat in the consulate, she was governed under the Vienna Convention on Consular Relations which provided her limited immunity.
- But the Indian government side-stepped this rule by transferring Khobragade to the Permanent Mission of India to the UN, which has the status of an embassy.
- That move gave her full diplomatic immunity as the Permanent Mission is covered by the Vienna Convention on Diplomatic Relations besides other UN rules.
- She was later moved to Ministry of External Affairs in New Delhi. The issue had escalated into a full-blown diplomatic spat between the US and India, which retaliated by downgrading privileges of certain category of US diplomats, among other steps.
Have there been other instances of Indian diplomats getting into trouble?
- In June this year, India’s high commissioner to New Zealand, Ravi Thapar, was recalled over allegations that his wife had assaulted their chef.
- Police were denied permission to interview both Thapar and his wife Sharmila because of the immunity they enjoyed. He was recalled to India.
- In January 2011, the Indian government informed Britain’s Foreign and Commonwealth Office of its decision to transfer senior diplomat Anil Verma to India. Verma had been questioned by Scotland Yard on allegations that he had assaulted his wife. He too escaped prosecution.
Now, what's the problem ?
- A fundamental principle of international law is that members of diplomatic missions are shielded from legal process. A common misconception is that diplomatic privileges and immunities confer a license to commit wrongs.
- This has led to diplomats, their families, personal servants, and staff abuse this privilege to escape prosecution for a variety of offenses ranging from minor traffic violations to the most heinous criminal acts, such as the child abuse, sexual harassment or murder. Diplomatic immunity also permits diplomats to escape civil liability in personal injury actions.
- Everyday practice indicates that both states and diplomatic agents still have problems with interpreting the relevant provisions of the Vienna Convention on Diplomatic Immunity.
- Unfortunately the diplomats are more likely those who occasionally tend to misinterpret the extent of their privileges and thus make use or, to be more precise and correct, abuse their inviolability and immunity.
Such abuses may still be tolerable by the receiving state in the name of securing effective performance of diplomatic functions, if these abuses involve merely minor offences or crimes. But do receiving states and the international community have to tolerate personal inviolability and diplomatic immunity in case of serious crimes such as murder and conspiracy as well as war crimes and crimes against humanity?
How does Vienna Convention fail in this aspect ?
- The approach adopted by the Vienna Convention on Diplomatic Relations of 1961, fails to take cognizance of elementary interests of the receiving State and individual values which might be put into jeopardy if diplomatic privileges, e.g., the inviolability of diplomatic premises, are conceived as precluding even measures against acts which aims at the safety of the receiving State or threaten human 1ife.
- It seems hardly acceptable that in extreme situations the receiving State is left with the option either to grant protection to individuals or, even more dramatically, to ensure its own self-preservation, or to comply with international law.
MEASURES PUT IN PLACE TO CURB DIPLOMATIC CRIMES (though inadequate !!!)
(Persona non grata in diplomacy literally meaning "an unwelcome person", refers to a foreign person whose entering or remaining in a particular country is prohibited by that country's government. It is the most serious form of censure which one country can apply to foreign diplomats, who are otherwise protected by diplomatic immunity from arrest and other normal kinds of prosecution.)
- Under the Vienna Convention on Diplomatic Relations Article 9, a receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.
- While diplomatic immunity protects mission staff from prosecution for violating civil and criminal laws, depending on rank, under Articles 41 and 42 of the Vienna Convention, they are bound to respect national laws and regulations. Breaches of these articles can lead to a persona non grata declaration being used to punish erring staff.
WAIVER OF IMMUNITY
- Article 32 of the Vienna Convention allows the sending state to waive the diplomat's immunity.
- The article states that the immunity from jurisdiction of diplomatic agents and of persons enjoying immunity may be waived by the sending 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 counterclaim directly connected with the principal claim
- The Vienna Convention requires the sending state to make an express waiver of this privilege.
- History knows of very few cases when sending states have agreed to waive the immunity of their diplomatic agents. The sending state more likely prefers to recall the diplomat or dismiss him from its service in such cases .
- States, however, have waived the immunity of their diplomatic agents and one of such instances concerns a Georgian diplomat. The second-highest ranking diplomat for the Republic of Georgia in the United States, Gueorgui Makharadze, was involved in a tragic automobile accident that resulted in the death of a sixteen-year-old girl, a Brazilian national, on 3 January 1997 in Washington D.C.
Need to RETHINK and REVISIT the Vienna Convention !!!
- Diplomatic immunity protects violators from punishment for failing to obey the law of the receiving state. The international community must seriously rethink this policy which places not only diplomats, but their families, staff, and personal servants above the law.
- The international community, through a forum such as the United Nations, must reevaluate the ancient principle of diplomatic immunity. The United Nations needs to establish new guiding principles that could preserve the basic concept of diplomatic immunity while defining reasonable limits as to who is entitled to immunity. The participants in this international debate must consist not only of international legal scholars and those who conduct diplomacy, but also the victims of diplomatic crime.
- The establishment of a 'CLAIMS FUND' to compensate those injured by diplomats. Under this proposal, victims who could not successfully bring actions under the Diplomatic Relations Act could draw compensation from a nation government funded financial pool. All states should establish a "Bureau of Claims" to ascertain causation of injuries stemming from instances involving a diplomat. The bureau would then determine the amount of compensation due to the victim.
- Another recommendation is the need for implementation of a mandatory insurance scheme to solve the problem of diplomatic immunity abuse.The proposed scheme requires embassies to obtain insurance for their diplomats and staff as a prerequisite to maintain diplomatic relations with the Receiving States.
- Establishment of a Permanent International Diplomatic Criminal Court (court) with mandatory jurisdiction over diplomats accused of committing criminal acts. The court will act as both the prosecution and the defense. This court would have the power to impose monetary fines and, if necessary, to imprison diplomats in its own penal facilities.The practical advantages of this proposal are twofold.
1. First, the court could operate free from the potential unfair bias of local proceedings.
2. Second, the use of a court outside a bilateral relations structure precludes the termination of diplomatic relations in extreme cases.