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 !!!
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- 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..
- Today,
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.
- Under
the concept of reciprocity, diplomats assigned to any country in the world
benefit equally from 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.
Diplomatic immunity is given
i)
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.
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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?
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- 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.
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- 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.
