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Abstract
The Vienna Convention on Diplomatic Relations may have clearly
spelt out the existing law with regard to diplomatic practices.
However, upon a deeper probe into the concept of diplomatic
immunity, one can conclude that the position is rather unsettled.
Controversy essentially revolves around those areas where the
abuse of diplomatic immunity has caused direct and proportional
harm to individual & collective human rights. Firstly, this paper
seeks to precisely chart out notions of diplomatic immunity. In
the second half, the author attempts to identify the areas of
conflict between diplomatic immunities and human rights. Finally,
an attempt is made to arrive at a problem-solving mechanism.
I. Introduction
Diplomacy, as a method of communication between various parties,
is believed to be one of the few human occupations without which
mankind will never be able to live. Hence, rules regulating the
conduct of diplomatic relations constitute one of the earliest
expressions of international law. To a large extent, the variety
of means adopted by States to conduct diplomacy with each other is
governed by a special body of diplomatic law. Thus, the adoption
of The Vienna Convention on Diplomatic Relations in 1961 marked
the codification and progressive development from ancient
practices, customs and treaties governing diplomatic law.
The Vienna Convention is plainly declaratory of existing rules and
practices with respect to diplomatic immunities and privileges,
which are reciprocally accorded by the States without
discrimination. Special privileges for diplomatic personnel grew
up partly as a consequence of sovereign immunity, independence and
equality of states and partly as an essential requirement of the
international system. The prime motive behind extending immunities
and privileges by States to their diplomatic representatives is to
ensure independence in the performance of their official
functions. Moreover, due to the reason that diplomatic personnel
represent their States in negotiations and consultations with
international organizations, it is more so an issue of practical
convenience. The true meaning of the word ‘immunity’ in this
context must be clearly understood. Immunity means immunity from
the exercise of jurisdiction, not immunity from jurisdiction
itself. Diplomats are not above the law in force in the receiving
State and the State is not precluded from enacting legislation
applicable to all persons within its territorial jurisdiction.
Immunities from jurisdiction are especially difficult to justify
in light of the growing role and status of international human
rights. This is because an obligation towards safeguarding the
basic human rights of its citizens is also a sensitive issue which
ought not to be tampered with. In the event of a greater degree of
abuse of immunities taking place resulting in direct collision
with human rights, a problem solving mechanism needs to be
evolved. This requirement has resulted in a need to trace the
diplomatic immunity law and human rights jurisprudence in the
international scenario. By directly identifying the zonal areas of
conflict, this paper attempts to put forth the possible solutions.
II. Theoretical Basis for Diplomatic Immunity
Three theories, whose popularity has varied over time, have been
used to justify diplomatic immunity. The purpose of these
theories, however, has remained constant i.e., to explain the need
to give diplomats immunity.
Representational Theory
The first theory is that of ‘personal representation’. Under this
traditional theory of diplomatic practice, a diplomatic envoy is
believed to personify the sovereign he represents. Diplomatic
agents therefore are given the same degree of privileges which are
given to the Prince or to the Sovereign. The theory is essentially
based on the notion that the representative should be treated as
if the sovereign himself was conducting diplomacy. The
representative’s privileges are similar to those of the sovereign,
and an insult to the ambassador is an insult to the dignity of the
sovereign.
Modern diplomatic practice does not accept this theoretical
approach for several reasons. This theory is subject to criticism
in the sense that extension of immunities of the sovereign to the
diplomatic agents by no means is logical. The personification
doctrine is too broad because it places the diplomat above the law
of the host state and it is difficult to reconcile with the
supremacy of the receiving sovereign. Moreover, the rise of the
modern system of nations has deprived the theory of much of its
validity. Although the personal representative theory extends
immunity to official acts, it offers no theoretical basis for
protecting private acts. The main flaw in this approach is that
sovereignty is increasingly vested in the nation rather than a
monarch. Hence, for these reasons, the representative of the
sovereign theory has fallen out of use as a rationale for
diplomatic immunity.
Exterritorial Theory
The second theory, that of ‘exterritoriality’, basically stands
for the proposition that diplomats’ offices, homes, and persons
are to be treated as if they are on the territory of the sending
state. The exterritoriality approach to diplomatic immunity adopts
the legal fiction that a diplomat is always on the soil of his
native country, wherever he may actually go. According to this
theory, diplomatic agents are deemed not to be within the
territorial jurisdiction of the State where they are accredited,
but to be at all times within that of the sending state. Hugo
Grotius was of the view that extra territoriality of the
diplomatic agent means that inspite of being physically present
upon the soil of the country to which they are accredited, they
remain for all purposes upon the soil of the country to which they
represent. This theory is also called fictional theory as the
notion of extra territoriality is based merely on a fiction.
Irrespective of the fact that this theory was adopted by many
writers of the nineteenth century, it has been discarded by modern
jurists because in their opinion, the basis of giving immunities
and privileges to the diplomatic agents is not that of extra
territoriality. Decisions of different municipal courts have
discarded the theory as fiction and like most legal fictions,
there is also limited usefulness.
It is the oldest of the theories, but has received increasing
criticism in recent years. The sweeping implications of the
exterritorialy doctrine of diplomatic immunity have led to its
substantial abandonment. Not only is the doctrine a mere legal
fiction, but dangerous consequences could result because it
‘presupposes a theory of unlimited privileges and immunities which
would go beyond those actually extended diplomats’. For this
reason, commentators have generally rejected this theory as a
basis for diplomatic immunity.
Theory of Functional Necessity
The theory of functional necessity is currently popular. More
pragmatic than the other two theories, this approach justifies
immunity on the grounds that diplomats could not fulfill their
diplomatic functions without such privileges. Hence, diplomatic
agents are primarily given these benefits because of the nature of
their functions. If diplomats were liable to ordinary legal and
political interference from the state or other individuals, they
would be dependent on the good will of the receiving state.
Considerations of safety and comfort might materially hamper the
exercise of their functions. If immunities are not granted, then
diplomats will be kept at the mercy of interruptions by the local
administration, in turn making it impossible for them to carry out
their duties. Thus, functional theory rests on practical
necessity.
It may be concluded that while the exterritorial theory is
discarded for all purposes, immunities are granted to the
diplomatic agents not exclusively because of the functional
theory. The basis of giving immunities is a combination of
representational theory as well as functional theory. The preamble
of the Vienna Convention refers to both considerations. Starke has
rightly stated that the immunities and privileges of diplomatic
agents are primarily based on the need to ensure performances of
the functions of diplomatic missions, and to a secondary degree on
the theory that a diplomatic mission personifies the sending
State.
III. Provisions of the Vienna Convention on Diplomatic Relations,
1961
Diplomatic immunity is a concept that has been part of the fiber
of international relations for thousands of years. “The
inviolability of ambassadors is sacred and acknowledged as such by
all civilized peoples, Julius Caesar wrote more than 2000 years
ago. Diplomacy as a system, and immunity as a core principal,
evolved slowly over time. A wise government will treat the
diplomats accredited to it well and protect them from harm. It
will then be able to demand that foreign governments do the same
for its diplomats.
Diplomatic immunity involves exemptions from the normal operations
of the law of the host country to foreign diplomats to assure that
their official duties will not be impeded. Among the most
important of these protections are the inviolability of their
persons and premises and their exemption from the taxation and
civil and criminal jurisdiction of the local authorities.
Diplomatic immunity was established in its modern form by the
Vienna Convention on Diplomatic Relations in 1961. In 1952, the
United Nations General Assembly requested that the International
Law Commission codify international law on diplomatic intercourse
and immunities. The Commission prepared a draft text by 1957,
received comments from 21 nations, and then presented a draft
treaty to the General Assembly in 1958. The UN Conference on
Diplomatic Intercourse and Immunities convened in Vienna in 1961,
made further revisions to the draft, and adopted the Vienna
Convention for ratification by the member nations. Forty nations
initially signed the treaty. Since then, nearly 190 nations have
become party to the treaty.
Peoples of all nations from ancient times have recognized the
status of diplomatic agents, the treaty begins. It adds
that diplomatic immunities and privileges are important to
contribute
to the development of friendly relations among nations. It
asserts that the treaty’s purpose is not to
benefit individuals but to ensure the efficient performance of the
functions of diplomatic relations. The objective of the Vienna Convention is
to ensure that the staffs of diplomatic missions are afforded the
highest level of privileges and immunities in the host country so
they may effectively perform their duties.
This treaty, which came into force in 1964, contains fifty-three
articles and governing every aspect of diplomatic immunity from
accreditation of ambassadors, to the use of flags on diplomatic
vehicles, to exemption from local taxation. The Vienna Convention
emphasises the functional necessity of diplomatic privileges and
immunities for the efficient conduct as enunciated in Boos v.
Barry that, the need to protect diplomats is grounded in our
nation’s important interest in international
relations ..Diplomatic personnel are
essential to conduct the international affairs so crucial to the
well-being of this nation.
Diplomatic Immunities
- Property
Under Art. 22 of the Vienna Convention, the premises of the
mission are inviolable and together with their furnishings & other
property thereon, the means of transport are immune from search,
requisition, attachment or execution. It is to be noted that by
Art. 24 of the Vienna Convention, the archives and documents of
the mission are inviolable at any time and wherever they may be.
Although ‘archives and documents’ are not defined in the
Convention, Article 1(1) k of the Vienna Convention on Consular
Relations provides that the term ‘consular archives’ includes ‘all
the papers, documents, correspondence, books, films, tapes and
registers of the consular post together with the cipers and codes,
the card-indexes and any article of furniture intended for their
protection or safekeeping’. The term as used in the Diplomatic
Relations Convention cannot be less than this.
Diplomatic Immunities
- Personal
The person of a diplomatic agent is inviolable under Article 29 of
the Vienna Convention and he may not be detained or arrested. This
principle is the most fundamental rule of diplomatic law and is
the oldest established rule of diplomatic law. States recognise
that the protection of diplomats is a mutual interest founded on
functional requirements of reciprocity. The receiving State is
under an obligation to take all appropriate steps to prevent any
attack on the person, freedom or dignity of diplomatic agents.
After a period of kidnappings of diplomats, the UN Convention on
the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents was adopted in
1973. This provides that State parties must make attacks upon such
persons of a crime in internal law with appropriate penalties and
take measure as may be necessary to establish jurisdiction over
these crimes. State parties are obliged to extradite or prosecute
offenders. The most blatant example of the breach of the
obligation to protect diplomats was the holding of US diplomats as
hostages in Iran in 1970-80. However, in exceptional cases, a
diplomat may be arrested or detained on the basis of self-defence
or in the interests of protecting human life.
Art. 30(1) provides for the inviolability of the private residence
of a diplomatic agent , while Art. 30(2) provides that his papers,
correspondence and property are inviolable. As far as criminal
jurisdiction is concerned, diplomatic agents enjoy complete
immunity from the legal system of the receiving State, although
there is no immunity from the jurisdiction of the sending State.
The provision noted in Art. 31(4) reflects the accepted position
under customary law. The only remedy the host state has in face of
offences alleged to have been committed by a diplomat is to
declare him persona non grata under Art. 9.
IV. Abuse of Diplomatic Immunity
The concept of diplomatic immunity is facing a raft of
contemporary challenges as the very idea of offering immunity to
diplomats is being questioned by various segments of the public at
large. Adding to this, the media publicises sensational accounts
of diplomats ignoring laws of their host nations and appearing to
be unaccountable for their actions.
Four articles of the Vienna Convention apply when a diplomat has
abused his immunity:
# Art. 29 provides that the person of the diplomat shall be
inviolable and that the diplomat is not liable to any form of
arrest or detention;
# Art. 31 exempts the diplomat from the criminal jurisdiction of
the receiving State, though a diplomat can be tried in the
receiving state if her immunity is waived.
# Under Art. 32, however, only the sending State may waive
immunity, and the waiver must always be express.
#The fourth provision, Art. 41, requires that the diplomat
respect the laws and regulations of the receiving State and not
interfere in the internal affairs of the receiving State. This
provision is unenforceable due to the previous three provisions of
the Convention, which exclude diplomats from the jurisdiction of
the receiving state. In short, the diplomat himself cannot be
touched.
Broadly speaking, the problem of abuse of diplomatic immunity
falls into two categories of abuse. The first kind involves a
deliberate abuse, which is of terrorist or political nature, and
the second variety of abuse is of a more personal nature.
Abuse of Criminal Nature
Abuses of diplomatic immunity of criminal nature involve using the
diplomatic bag to smuggle illegal goods into or out of the
receiving state and crimes committed by the diplomats themselves.
Smuggling goods into or out of the receiving State using the
diplomatic pouch is relatively common.
There have also been more unusual and violent cases of abuse of
immunity by diplomats. Perhaps the most well known is the shooting
of a British policewoman in St. James’ square by an unidentified
assailant who was within the Libyan Embassy in London in April
1984. There, protesters were demonstrating peacefully when
submachine gunfire from the Embassy killed British constable
Yvonne Fletcher and wounded eleven others. The Libyans claimed
diplomatic immunity for all embassy occupants; the British
Government declared the diplomats persona non grata, expelled
them, and broke off relations with Libya - all that it could do
under the Vienna Convention.
Another incident in Britain involved an ex-member of the former
Nigerian government, Alhaji Umaru Dikko. In July 1984 Mr. Dikko
was kidnapped from his London home, drugged, and put into a
diplomatic crate bound for Nigeria. The crate also contained
Israeli mercenaries who had helped in the kidnapping. The Nigerian
government refused to cooperate, and again, all Britain could do
was expel the diplomats involved with the kidnapping. This was not
the first time the immunity of a diplomatic bag was used for
purposes of abduction.
The United States has also had its share of incidents. In 1983 two
Guatemalan diplomats helped kidnap the wife of El Salvador’s
former Ambassador to the United States. She was taken from her
Florida home and held for a 1.5 million dollars ‘war tax’. The two
diplomats involved were taken into custody after the State
Department, in an ‘unusual move’, successfully negotiated with the
Guatemalan Government for the waiver of their diplomatic immunity.
In December 1987, in an American School, the teachers noticed
scars on the face of a nine-year old son of a Zimbabwean diplomat,
posted at the United Nations. On being interrogated, the boy told
that his father had beaten him mercilessly. Investigations were
conducted and the boy was temporarily placed with a US family by a
court in New York. Thereafter the US State Department expelled the
diplomat, Floyd Karamba, the father. At this, the Zimbabwean
government accusing of kidnapping the boy demanded for the return
from the US government. The American judge did not allow the boy
to return in the beginning but later on he was sent back to
Zimbabwe.
Later that year O Nam Chol, a North Korean diplomat, surrendered
to American authorities. He had found sanctuary in the North
Korean Embassy for ten months after allegedly sexually assaulting
a woman in a park in New York. In order to force Mr. Chol out of
the North Korean mission, the State Department threatened to expel
Mr. Chol’s superior. Mr. Chol then surrendered to the authorities,
who charged him with the crime and ordered him to leave the
country.
The Paris-based Committee Against Modern Slavery recently reported
that it documented 135 cases of exploitation, including violence
and rape, in Western capitals, of maids by internationally
protected persons over the last two years. Shamela Begum, a maid
for high-ranking diplomat from Bahrain she was kept a virtual
prisoner in high-rise apartment on Manhattan’s East Side for
almost nine months. Begum, in rare effort to hold an official of
foreign government accountable to laws of US, has accused Mohammed
Saleh and his wife Khatun of flagrant state and Federal labor law
violations. Although diplomats serving in foreign country are
required to abide by host country's laws, they are immune from
legal action, both civil and criminal. Immediately after the
institution of charges, Mohammed Saleh, is believed to have
claimed diplomatic immunity, thereby requesting the federal judge
of Manhattan to dismiss charges. However, the trial began, but the
lawyer for United States government asks Judge Richard M Berman to
dismiss case, warning that failure to uphold diplomatic immunity
for envoy could lead to retaliation against American diplomats
abroad. Finally on July 15 2000, Bahrain diplomat Mohammed Saleh
and his wife, Khatun, reached out-of-court settlement and were to
remain in New York while Federal Bureau of Investigation completed
criminal probe.
Another case demonstrates that, although diplomatic immunity is
far-reaching, it is not absolute. In United States v. Guinand, the
United States prosecuted a former member of the administrative
staff of Peru for cocaine smuggling. The United States District
Court for the District of Columbia held that the defendant could
be tried for his crime because his term as a diplomat had ended.
Thus, under this case, a foreign diplomat may be sued or
prosecuted in the United States if the underlying act is unrelated
to the diplomatic functions of the individual and the diplomat
remains in the United States after his diplomatic status has been
terminated.
In the year 1987, when Shah Mohammad Dost, a former foreign
minister of Afghanistan was posted as Afghanistan’s diplomat to
the United Nations, he rammed a woman with his car in a dispute
over parking place in New York, but he could not be arrested and
prosecuted.
In July 1990, the Delhi police recovered 485 kilograms of hashish
from a deserted house which was in the vicinity of the residence
of a Ugandan diplomat. According to the police, the diplomat
probably had a plan to smuggle it out of India but on being
inquired the Ugandan High Commission is reported to have denied
any link between the recovered hashish and the diplomat. The
matter was ultimately dropped, but an important point for
consideration is that even if the police had irrefutable evidence
and were sure of the direct involvement of the diplomat in the
case, they were helpless and could not arrest him because the
diplomats along with their family members, technical staff and the
administrative staff are immune from criminal prosecution under
the provisions of international law.
Diplomatic immunities are very commonly abused in most inhuman
ways. On December 3, 2004, a guard for the American embassy in
Bucharest, Romania, allegedly drunk, collided with a taxi and
killed the popular Romanian musician Teo Peter. In 1981, New York
Police were looking for a black youth who had raped, sodomised and
battered many young women. When captured, he was identified as
Mannel Aryee, son of an attaché to the Ghanian mission. His father
was a diplomat in the United Nations. Aryee could not be arrested
and walked out of police station within minutes as if nothing had
happened.
In all these situations the host government had an alarmingly
narrow range of options, i.e., expulsion and a break in diplomatic
relations were the only actions available. Because these actions
were the most severe that could be taken under the Vienna
Convention, there was great public feeling that injustice had been
done.
In a surprising turn of events, in January of 1997, Gueorgui
Makharadze, the deputy ambassador of Republic of Georgia’s embassy
in Washington caused an accident that injured four people and
killed a sixteen-year-old girl. He was found to have a
blood-alcohol level of 0.15, but released from custody because he
was a diplomat. The U.S. government asked the Georgian government
to waive his immunity, which they did and Makharadze was tried and
convicted of manslaughter by the U.S. and sentenced to seven to
twenty-one years in prison.
Abuse of Civil Nature
In civil cases, diplomatic immunity permits diplomats to escape
liability for their actions. Immunity also allows diplomats to
avoid service of process and appearance in court. Thus, a victim
without recourse against an offending diplomat in the criminal
justice system cannot obtain monetary compensation in a civil
action.
In Skeen v. Federative Republic of Brazil, the United States
District Court for the District of Columbia dismissed a suit
against the grandson of the Ambassador of Brazil, for lack of
jurisdiction. The plaintiff alleged that the ambassador’s grandson
had assaulted and shot him. Upon showing that the Ambassador and
his family were certified as diplomats by the United States
Department of State, the court dismissed the suit. The Court
deferred to the policy considerations of the executive and the
legislature in granting immunity to diplomats and their families.
Diplomats have also invoked diplomatic immunity to avoid service
of process on a diplomatic mission or on a diplomat himself. In
Hellenic Lines Ltd. v. Moore, the United States Court of Appeals
for the District of Columbia held that service of process on the
Tunisian ambassador violated the doctrine of diplomatic immunity.
In an action for libel against the Republic of Tunisia, Hellenic
Lines, Ltd., filed a mandamus action to compel a United States
Marshal to serve a summons upon the Tunisian ambassador to the
United States. The United States District Court granted the
Marshal’s motion to dismiss the case and the court of appeals
affirmed. The Court of Appeals addressed the State Department’s
fear that a contrary decision would prejudice United States
foreign relations and impair the performance of diplomatic
functions. The Court stated that it would not force a Marshall to
serve process upon a diplomat ‘if service would violate
international law and might subject the diplomat to the criminal
law of the United States’. The Court balanced the cost of
disrupting foreign relations against the benefits of service of
process on a diplomat and concluded that the cost of disrupting
foreign relations far outweighed the benefits of service of
process to the judicial system.
In another service of process case,
Alberti v. Empresa
Nicaraguense De La Carne, the United States Court of Appeals for
the Seventh Circuit considered a declaratory judgment action
against the Nicaraguan government. Plaintiffs owned thirty-five
percent of the stock of a beef packing company before Nicaragua nationalised the company and sought recovery of the value of the
stock. The summons and complaint were served by mail upon the
Ambassador of Nicaragua in Washington, D.C. Relying on the
legislative history of the Foreign Sovereign Immunities Act (the ‘FSIA’),
the Seventh Circuit held that section 1608 of the FSIA precluded
service of process upon an embassy by mail.
Diplomats also invoke diplomatic immunity to avoid having to
testify at trial. For example, the United States District Court
permitted the Canadian ambassador to the United States to refuse
to testify in a perjury case. In its ruling, the Court agreed with
the State Department that the service of summons at the Canadian
embassy in Washington, D.C. violated the diplomatic immunity which
the United States accorded representatives of the Canadian
government.
Cases that involve serving a summons upon a diplomat, either as
part of a suit against the sending State or to secure testimony at
trial, illustrate the conflicts that arise when a State threatens
a diplomat’s freedom of movement. It is because of these conflicts
that courts generally avoid limiting the immunities granted to
diplomats by the Vienna Convention on Diplomatic Relations. While
the shield of diplomatic immunity in cases of violent crime or
tortious acts may seem unfair, the inability to serve process on
or obtain the testimony of a diplomat is merely inconvenient.
Removing these obstacles may indeed facilitate prosecution of
foreign businesses or governments, but it may also frustrate the
goals of the Vienna Convention and complicate the performance of a
diplomat’s duties. The revocation of diplomatic immunity for civil
purposes is therefore less pressing than the need to protect
victims of crime and to make diplomats legally responsible for
their criminal acts.
V. Clash between Diplomatic Immunity and Human Rights
This part of the paper concentrates on instances where there is an
apparent clash between these two important sets of international
rules i.e. diplomatic immunity law and human rights. An attempt is
made to isolate the areas most affected by that collision and to
ask which one, if any, is superior to the other. Theoretical
consideration needs to be placed on reciprocity in diplomatic
relations and this in turn suggests that purely hierarchical
grading is neither practical nor desirable.
Diplomatic Immunity & Human Rights: A Brief History
Diplomatic immunity is firmly based on long history of supporting
State practice. The 1961 Vienna Convention codified existing
customary diplomatic law, resolved some points of conflicting
State practice, and introduced other rules. As a result,
diplomatic law is currently based on a well received multilateral
treaty as well as old customary law.
International human rights rules offer a different story. Until
the beginning of this century, international concern with human
rights issues was more or less confined to warfare law and
slavery. The radical shift in international attitude to human
rights law largely came about as a result of the Second World War.
The adoption of the Universal Declaration and a series of
follow-up and rights-specific multilateral treaties, rapidly
established the prominence of international human rights law.
Hence, international human rights law is a relatively new creature
created by various treaties signed mostly during the second half
of this century. Today, the two sets of rules in question are
soundly based on treaty law.
Conflicting Elements between Diplomatic Immunities and Human
Rights: Prevention, Punishment and Remedy
A legal norm that is a part of a coercive system essentially
establishes a legal duty and in its connection to the violated
party, it in turn becomes a legal right. Legal norms provide for
coercive acts as sanctions for violation of legal duties and legal
rights. A coercive legal order principally seeks prevention of,
and retribution for, one’s interference in the sphere of interests
of the other. On this reading, international law is not
essentially different from domestic legal systems. Turning to the
subject-matter of this paper, human rights may be safeguarded by
preventing their violation in the first place, by adequate
punishment of violators, and by providing for a satisfactory
remedy.
In the human rights context, prevention primarily relates to
removal of structural obstacles that are at the root of injustice.
From this standpoint, identifying structural obstacles to justice
is as important as dealing with violations. Since diplomatic
immunity shields accredited persons against domestic jurisdiction,
it practically interferes with the intended operation of the
coercive legal order.
The presence of immunities also entails a deficit in relation to
the second function of sanctions within the coercive legal order:
retribution. The idea of retribution lies at the heart of the
social technique called ‘law’. Thus, one way of solving the
problem in the context of human rights is to change diplomatic law
so that violations will carry sufficient punishment to satisfy the
principle of retribution.
Another problem arising from the operation of diplomatic
immunities is that the wrongdoer cannot be coerced to pay
compensation to the victim for his unlawful action. The apparent
lack of that third safeguard, namely, the adequate remedy for
victims of human rights’ violations committed by accredited
persons, presents a strong case for reform.
To repeat, potential collision between the two set of rules,
diplomatic law and human rights, is not restricted to the
inability of a host state to punish the protected wrongdoer, but
also relates to the lack of effective prevention before the wrong
is committed, and to the inability of the receiving state to
ensure satisfactory remedy.
Human Rights vs. Diplomatic Immunities: Some Examples of Collision
One manifestation of the inescapable link between human rights and
serious abuse of immunities is the relationship between violence
and human rights in general. For example, one commentator
suggested that acts of violence have in common the effect of
intimidation. [Such acts] etymologically and tautologically, cause
the individual to fear being in physical harm and extreme
anxiety. Looking at specific human rights principles in the light
of past incidents involving alleged abuse of immunity may be
indicative of the type of situations in which immunity directly
clashes with basic human rights.
(i) Right to Life
- The April 1984 killing of a British Police
Constable and the wounding of eleven Libyan dissidents outside the
Libyan embassy in London, is one example of a clash between right
to life and diplomatic immunities. First, the unidentified persons
who allegedly fired at the victims through the windows of the
embassy could not be prosecuted and punished by the British legal
system. Likewise, the alleged lawbreaker could not be forced to
compensate the victims’ families. Finally, though difficult to
assess, the knowledge that diplomatic immunity is available might
have induced the shooter to shoot in the first place. In other
words, the Libyans’ entitlement to diplomatic immunities possibly
diminished the important element of deterrence. After nine days of
negotiations, during which their wives were reported to have made
final shopping trips to London's big department stores, the 30
Libyans in the embassy were escorted to the Airport and boarded a
Libyan airliner to Tripoli.
(ii) Slavery
- Many recent instances of diplomatic slaves have
been reported where some have been forced to work interminable
hours every day, seven days a week, for little or no wages, made
to sleep on floors and eat table scraps and sometimes beaten or
sexually abused. Their passports were withheld by their masters as
insurance against escape.
In one reported case, a Bolivian servant was kept as a virtual
prisoner by an Egyptian diplomat stationed in the US. She was made
to work seven days a week and never received a penny. Her passport
was kept by the diplomat who denied her medical treatment when she
developed a severe disease causing bleeding and infections.
In another case, a Filipino maid has accused a Jordanian diplomat
and his wife of mistreating her, making her work endlessly for 50
cents an hour, locking at their Virginia home, and hiding her
passport and belongings so she could not escape.
In contrast, where diplomatic immunity is not available, justice
can be done and human rights are respected. This is illustrated by
the story of two women kept as slaves in the London home of a
Princess from the Kuwaiti Royal family. One of them told the
police that she was ‘..whipped, kicked, beaten and starved’. The
Princess then claimed diplomatic immunity to which she was not
formally entitled. In February 1985 she was sentenced to six
months in prison suspended for two years, and was ordered to pay
£2,000 in fines, costs and compensation to the maids.
(iii) Security of the Person - The victim of the Brazilian
Ambassador son 1982 shooting in a Washington night club never
fully recovered from his wounds and underwent psychiatric
treatment. In another incident, the Mexican Ambassador to the UN
smashed the window of a car belonging to a New York City man and
pointed a gun at his head because the man had parked for five
minutes in a space reserved for diplomats. No charges were brought
against the ambassador.
In yet another case, a visitor to Georgetown’s entertainment
district attempted to stop a stranger - who was later identified
as a secretary for the Italian military attaché - from harassing a
16-year-old girl, the stranger then attempted to run him down in a
car. The police, intending to charge the man for assault with a
deadly weapon, had to release him.
(iv) Rights of the Child
- Art. 19 of the Convention on the
Rights of the Child demands, inter alia, that all appropriate
measures be taken by state parties to protect children from all
forms of physical and mental violence.
In one case the 9-year-old child of an attaché of the mission of
the Republic of Zimbabwe was sent to a foster home after his
school officials noticed that he was badly bruised and battered.
The child was reported to have been ..hung by the ankles and
beaten, then cut down so he fell on his head. The Convention on
the Rights of the Child also provides that the best interests of
the child shall be a primary consideration in all actions
concerning children.
In a recent case, a US diplomat in London pleaded diplomatic
immunity after whisking his two daughters to the US despite the
English High Court ruling that granted custody of the children to
his German wife. The diplomat refused to bring the girls, aged 10
and 13, back to Britain. The English Appeal Court, clearly unhappy
with the immunity plea, stated: it seems
surprising that a country which is a signatory to the Hague
Convention on the wrongful removal of children and child abduction
should be to escape the ordinary operation of the convention by
claiming immunity.
VI. Conflict Resolution
The fundamental question is whether diplomatic immunities should
prevail even where a violation of human rights has been
established, or, on the contrary whether human right ought to be
safeguarded even if it means the curtailment of diplomatic and
consular immunities.
Under the traditional approach, diplomatic immunities were upheld
by virtue of the long standing practice of according immunities to
diplomats and representatives of States. However, the debate for
upholding human rights would question the scope of diplomatic
immunities. That is, in other words, immunities should cover only
‘acts performed in the exercise of official functions’. Moreover,
rights protected under the Constitution ought to prevail over
diplomatic immunities since a constitutional rule has superior
legal status when compared to treaty rules.
There will always of course be the need to distinguish between the
infringement of fundamental human rights such as right to life &
physical integrity and human rights of a different nature, but
this is not a problem unique to the situation as it relates to
diplomatic and consular immunities, but rather a general one which
will require a necessary degree of flexibility in finding and
balanced response under international and domestic law.
The occasional abuse of diplomatic immunity led some writers to
propose several reforms aimed at preventing or minimising future
abuse.
Certain Acts can Never be Considered as Part of the Diplomatic
Function
Since the underlying theory for diplomatic immunity is functional
necessity, any given act for which immunity is claimed should be
necessary for conducting the diplomatic function. It is further
asserted that violations of human rights cannot, by any standard,
...be considered as a part of the diplomatic
or consular function, and thus neither can be considered an
official act. This idea has been clearly expressed in the
British Foreign Affairs Committee Report where it was stated that…it goes
without saying that terrorism or other criminal activities can
never be justified by reference to these diplomatic functions.
When diplomats act in fact as
terrorists, they should not be considered as diplomats at all,
hence must lose the benefit of those immunities that diplomats are
entitled to. However, an impediment arises because the diplomatic
community views immunity as a pre-condition for effective conduct
of diplomacy in certain countries. Without it, they say, diplomats
and their families are vulnerable to all sorts of pressures in
foreign countries. The argument that diplomatic immunity be
accorded only to important missions has failed in its entirety
because it would be impossible to distinguish between those
diplomats who need immunities and those who don’t.
Immunities as Mere Expression of Sovereignty
That argument is a straightforward one: It is established law that
sovereignty or domestic jurisdiction is no bar to the obligation
imposed on every State to stand for the protection of fundamental
human rights. Immunities are just an expression of such
sovereignty, so it logically follows that they, too, cannot impede
the protection of human rights.
This approach, unlike the functional immunity view discussed
above, essentially addresses the representational theory. Even a
State’s borders cannot affect its human rights obligations, so why
should its representatives in foreign lands be immune? This view
is however susceptible to criticism because firstly, it appears to
underestimate the continuing strength of domestic jurisdiction.
Second, it neglects to seriously consider the reciprocity factor.
In short, this approach tends to overlook functional necessity for
immunities in the general sense rather than in the act-specific
sense.
Legal Reforms: Re-negotiation of the 1961 Vienna Convention
A typical reaction to flagrant abuses of diplomatic immunity is to
argue that re-negotiation of the Vienna Convention
...seems to
most logical step to prevent future abuse.
A number of reforms
have been proposed they vary from restricting the scope of
immunities to carrying out an inspection of the diplomatic bag.
In this regard, some proposed amendments focus on limiting
diplomatic immunity to all or some accredited persons so that it
will apply only to official acts or other limited categories of
conducts. The personal immunities of administrative and technical
staff, and perhaps those of families, should be restricted. The
appeal of this proposal lies in the fact that a very high
percentage of crimes committed by protected persons is attributed
to low ranking officials and dependents.
In the arena of Problem-specific amendments, one specific proposal
concerns the inviolability of the diplomatic bag. Following the
Libyan embassy and Dikko incidents, the British considered an
amendment that would provide for compulsory opening of the
diplomatic bag upon request following reasonable suspicion, or
return of the bag to its point of origin.306 Indeed, the existence
of weapons of mass destruction - nuclear, chemical or biological -
does raise serious concerns about state terrorism and possible
abuse of the diplomatic bag. However, both the British government
and the House of Commons Committee clearly rejected the amendment
as a solution due to practical difficulties. It was thought that
securing amendments to the Vienna Convention in accordance with
proposals of the UK and like-minded countries would be virtually
impossible.
Other proposed amendments include the removal of personal immunity
after participation in acts of state terrorism, and withdrawal of
the inviolability of the diplomatic premises if used for acts of
state terrorism. Like the bag search proposal, and for similar
reasons, all these ideas have been strongly rejected.
Unilateral Domestic Measures
Abuse of diplomatic immunity sometimes leads to loss of faith in
the international system as a whole and calls for unilateral
measures in the form of domestic legal reforms to tackle abuse. In
1987, Republican Senator Jesse Helms proposed amendment to US
domestic legislation requiring the investigation and prosecution
of diplomats for serious criminal acts, including ‘any crime of
violence’, drug trafficking, and reckless and drunken driving, and
the altering of the definitions of the family member and
diplomatic bag.
Later, a more modified proposal was introduced entitled Diplomatic
Immunity Abuse Prevention Act. The bill was approved by the Senate
but rejected by the House of Representatives. Another proposal
called for immediate waiver of immunity & immediate expulsion of
diplomats committing serious crimes and requiring liability
insurance for foreign missions. This bill passed in Congress in
1998 merely requires the State Department to prepare an annual
list of diplomats accused of committing crimes and asserting
diplomatic immunity. Evidence from American and British government
sources clearly opposes any significant, or indeed any, domestic
or international modification of the Vienna Convention.
VII. Proposal for Adopting Safeguards
Prevention of Abuse of Immunity and Violation of Human Rights
A number of mechanisms are available in order to prevent abuse of
immunity and violation of human rights by accredited persons.
Preventive measures can be taken through the rigorous application
of the rules of the Vienna Convention. These measures include:
# Stricter appointment notification procedures as to prospective
staff of diplomatic missions
# Limiting the size of missions
# Scanning and weighting the diplomatic bag
# Limiting the extent of mission premises
# Announcement of greater readiness to declare an accredited
person a persona non grata even in cases of serious civil claims
and persistent unpaid parking tickets. In France, between November
2003 and 2004, there were 2,590 cases of diplomatic cars caught
speeding by automatic radars; China alone had 155 violations. In
January 2006, it was reported that, in London, diplomatic immunity
had been used to avoid paying millions of pounds in traffic fines,
as well as dodging around GBP1 million in local rates, although
some embassies have agreed to settle their bills.
# Logic dictates that even the potential threat of persona non grata declaration contributes towards prevention of abuse.
# The ultimate sanction and prevention measure available for
governments is the severance of diplomatic relations. Such
preventive measures do not seem incompatible with international
law and may be seen as a genuine attempt to reduce the risk of
abuse.
# The doctrines of self defense and self preservation are also
available to states in order to prevent human rights abuse.
The main problems are that such action is likely to be expensive,
involves divergent rules, and likely to be tainted with distrust
on the part of the sending state as well as possible hostile
attitude in the receiving State.
Punishment for Abuse of Immunity and Violation of Human Rights
It has been argued above that states are by no means powerless in
preventing abuse of diplomatic immunity and violation of human
rights. Nevertheless, violations will continue to occur as it is
unreasonable to expect that the whole world-wide diplomatic
population, consisting of many thousands of normal human beings,
will remain flawless. Upon the occurrence of abuse, whether or not
a human right violation, receiving states have several options.
# First, it is possible to conclude, in advance, a bilateral or
regional treaty providing for compulsory waiver of immunity, or
compulsory prosecution in the sending state.
# The receiving state can request waiver of immunity from the
sending state.
# A third option is ‘post-immunity prosecution’, that is,
prosecuting the alleged offender after his assignment has been
terminated.
# Fourth, the declaration of persona non grata in itself, though
not a perfect punishment for human rights violation, is not
without punitive value.
# Fifth, abuse of diplomatic immunity involving a violation of
fundamental human right may be seen as an international crime
suitable for trial by an international criminal tribunal. However,
there are various obstacles to such a solution, including the
diversity and international crimes and their various levels of
receptivity. It may also require the amendment of the Vienna
Convention to that effect.
# Perhaps the most promising approach for peacefully resolving
disputes where none of the above mentioned mechanisms has worked
(that is in cases of continuing disagreement), is amendment of the
Vienna Convention to require compulsory arbitration.
Remedies for Victims of Abuse of Diplomatic Immunity
It has been argued that amendment of the Vienna Convention to
permit civil liability is less likely to obstruct the performance
of a diplomat’s duties, it does not limit the diplomat’s freedom
of movement, and would not trigger retaliation by the sending
State. However, allowing civil lawsuits against protected persons
might be perceived by the sending state as a host-state-supported
obstruction of diplomats’ functions.
# Special Compensation Fund - The idea of an international fund
designed to compensate the victim of diplomatic wrongdoing is an
attractive one, but its administration will require much
international cooperation as well as admittance of fault on the
part of the sending State. Furthermore, to make payment from an
international fund, some fault would have to be found by an
international mediator. It is the duty of the receiving state to
ensure that adequate reparations are made when its citizens are
suffering the consequence of laws adopted for the larger good.
Some states already follow that path. For example, innocent
victims of diplomatic immunities’ violations in the UK have access
to Criminal Injuries Compensation Board.
# Compulsory Insurance - Liability Insurance schemes can
reasonably be expected to afford adequate compensation to victims.
The victims can directly assert their rights because the insurance
company is liable and appears in place of the diplomat, and the
immunity defense is circumvented. At the same time, there is no
need for international agreement and diplomats remain protected.
Sending states might require similar insurance but that, in
itself, does not seem to create a serious difficulty and may even
be desirable. Financial consequences for a diplomat as a result of
retaliatory measure of this kind is not equivalent to reciprocal
measures risking their well-being. At bottom, establishment of
compensatory mechanisms of that type constitutes a risk worth
taking.
# Arbitration - Interstate arbitration has been defined by the ILC
as A procedure for the settlement of disputes between states by a
binding award on the basis of law and as a result of an
undertaking voluntary accepted. The idea of compulsory
arbitration has been suggested by some members of the ILC during
the Vienna Convention draft preparations but was not included.
Apart from being impartial, and highly flexible, arbitration
offers a number of advantages to all states.
# Arbitration can be effective where a large number of claims must
be settled, preferably in a confidential manner. For example,
where abuse of diplomatic immunity violated the human rights of
numerous persons.
# Once a compromise (arbitral agreement) has been reached, there
are generally no preliminary stages but only one phase: merits.
# Arbitration allows for appointment of specialist in the disputed
field, in this case experts on diplomatic law and human rights.
# Unlike the ICJ, private persons or corporations can be parties
in international arbitration if its terms provide so. Arbitration
can therefore accommodate the possible wish of victims to be
directly involved in their claim.
# Since parties to arbitration retain more control over various
matters (e.g., composition of tribunal, formulation of the
question to be submitted to arbitration, the law to be applied
etc.), it reduces the uncertainty surrounding every prospective
international case.
# Arbitration offers, at least to some extent, protection against
loss of face as well as the possibility of using the third party,
the arbitrator, as a scapegoat.
# Arbitration is usually faster than the procedure before the ICJ.
# Perhaps most important, arbitration gives the parties time to
reflect on the dispute and its consequences. It provides some
distance from enraged, sometimes manipulated, public opinion, and
therefore ‘cools things down’.
# Arbitral solutions can generally produce in the parties a sense
of being treated fairly where a too-strict application of the law
would be less practical, less pragmatic, and less persuasive.
All told, no device, arbitration or other, can completely
guarantee satisfactory remedies for victims of human rights
violations by accredited persons. But the arbitration mechanism,
if adopted, may well improve their position.
VIII. Conclusion
It may be concluded that two sets of international rules, human
rights and diplomatic immunities, sometimes conflict. Contemporary
international law does not seem to provide a clear answer as to
the question of priority between them. Even if one assumes that,
at least theoretically, human rights law prevails, that assumption
quickly runs into trouble when it encounters the very real
reciprocity factor underlying the whole body of diplomatic law.
In the past, a number of radical solutions have been proposed.
These proposals included introduction of amendments to the Vienna
Convention and amendments to domestic laws. Such radical proposals
suffer from serious defects. The abuse of functionally based
immunities calls for functionally based remedies. In reality, the
vast majority of accredited persons, carrying out important and
sometimes risky tasks, do not abuse their status. When they do,
that abuse is almost always of minor character. States are not
powerless in face of occasional more serious abuses.
Means of prevention range from
firmer application of existing rules - including expulsion and
severance of diplomatic relations - to the ultimate act of self
defense. The latter is rather useful for the protection
fundamental human rights in extreme cases. Similarly, states are
not powerless in their attempts to punish human rights violators
protected by immunities. There is some evidence pointing to a
possible change of attitude towards greater readiness, on the part
of sending states, to waive immunities. Other routes, including
post-immunity prosecution and prosecution in the sending state,
may also available. Compensation of victims does not seem to be a
large scale problem. All in all, no legal system is perfect and
there will always be cases destined to lead to deterioration of
relations between the receiving and the sending state. But even in
such cases victims need not find themselves without adequate
remedy.
|
Diplomatic
Immunity In The Context Of International Human Rights
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The
author can be reached at:
sangeethamugunthan@legalserviceindia.com /
