lawyers in India

Diplomatic Immunity In The Context of International Human Rights

Written By: Sangeetha Mugunthan - 3rd year BA LLB (Hons.) - HNLU
International law
Legal Service
  • 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.

    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 and 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, 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.

    The author can be reached at: [email protected] / Print This Article

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