Diplomatic Immunity and Its Abuse

Submitted To:- Submitted

By:-
Ms. Anukriti Mishra Ashok Kumar
Samal

(Faculty Member Public International Law) Semester IV

Section- B

Roll No. 38

Public International Law Project

Date of Submission:-15/02/2017

HIDAYATULLAH NATIONAL LAW

UNIVERSITY

Uparwara, Naya Raipur, Chhattisgarh

 Acknowledgements
I would like to sincerely thank the Faculty member of Public International Law,
Ms. Anukriti Mishra, for giving me this project on the topic, “Diplomatic
Immunity and Its Abuse”. This has widened my knowledge on the relevant topic.
His guidance and support has been instrumental in the completion of this project.
I’d also like to thank all the honorable authors, writers, social workers and
Academicians, for their outstanding and remarkable works, views, ideas, and
articles that I have used for the completion of my project.
My heartfelt gratitude also goes out to the staff and administration of HNLU for the
infrastructure in the form of our library and IT lab that was a source of great help in
the completion of this project.
I also thank my friends and seniors for their precious inputs which have been very
helpful in the completion of this project.

Name – Ashok
Kumar Samal
Semester – 4
Section – B
Roll Number - 38
 Table of Contents

Introduction…………......………….……………………………..….……1

Review of Literature……………………………………………………….2

Objectives…………………......…….………………………………..……4

Research Methodology………......….……...………………………….…..5

Chapter 1........................................................................................…..........6

Chapter 2......................................................................................................9

Chapter 3 ....................................................................................................15

Chapter 4.....................................................................................................18

Major Findings……………………………………………………...……22

Conclusion...............................…….………………………...……….…...23

References………………...…….....………………….………..…...….....24
 Introduction
Among all peoples who wished to engage with each other on a basis other than that
of conquest and subjugation, it was practice from the earliest times that the person
of the envoy or intermediary between them was sacrosanct. Until it was accepted –
originally as a matter of religious scruple, that the herald or emissary could pass
safely in order to negotiate terms of truce or agreements to settle quarrels, there
could be no peaceful international relations or rules on questions of substance.
Diplomatic immunity is a form of legal immunity that ensures diplomats are given
safe passage and are considered not susceptible to lawsuit or prosecution under the
host country's laws, although they can still be expelled. Modern diplomatic
immunity was codified as international law in the Vienna Convention on Diplomatic
Relations (1961) which has been ratified by all but a handful of nations, though the
concept and custom of such immunity have a much longer history dating back
thousands of years. Many principles of diplomatic immunity are now considered to
be customary law. Diplomatic immunity as an institution developed to allow for the
maintenance of government relations, including during periods of difficulties
and armed conflict. When receiving diplomats, who formally represent the
sovereign, the receiving head of state grants certain privileges and immunities to
ensure they may effectively carry out their duties, on the understanding that these
are provided on a reciprocal basis.
Originally, these privileges and immunities were granted on a bilateral, ad hoc basis,
which led to misunderstandings and conflict, pressure on weaker states, and an
inability for other states to judge which party was at fault.
An international agreement known as the Vienna Conventions codified the rules and
agreements, providing standards and privileges to all states. It is possible for the
official's home country to waive immunity; this tends to happen only when the
individual has committed a serious crime, unconnected with their diplomatic role (as
opposed to, say, allegations of spying), or has witnessed such a crime. However,
many countries refuse to waive immunity as a matter of course; individuals have no
authority to waive their own immunity (except perhaps in cases of defection).
Alternatively, the home country may prosecute the individual. If immunity is waived
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by a government so that a diplomat (or their family members) can be prosecuted, it
must be because there is a case to answer and it is in the public interest to prosecute
them.

Review of Literature
I read a comprehensive summary of the Mahabharata and it being the huge epic, that
it is, it taught me a lot of things. Though the society at that time was a male
dominated society, Mahabharata still portrays a pretty strong image of women.
Women like Satyavathi, Kunti, Draupadi, play a pretty strong role in influencing
events occurring in the epic.

Objectives Of the Study

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 Chapter 1- Diplomatic Immunity and its
Extent
History of Diplomatic Relations
Diplomacy encompasses the myriad processes of formal and informal
communication between and among states. While evidence of diplomatic practices
exists from the ancient Egyptian, Greek, and Roman worlds (especially through
envoys), the antecedents of modern diplomatic practices can more properly be traced
to medieval and early modern Europe. The emerging states of Europe slowly began
to institutionalize formal diplomatic customs and conventions in the 14th, 15th, and
16th centuries, forced as they were to engage with one another for political,
geographic, economic, religious, and strategic reasons. Traditionally (and especially
since the Renaissance), diplomacy has been conducted by ambassadors and consuls,
professional diplomats who function as resident agents of their respective
governments in foreign states. Since the early 19th century, the leaders and foreign
ministers of the major powers have increasingly opted to conduct direct diplomacy
through congresses, conferences, and summits, in addition to dispatching permanent
representatives to act on their behalf.
Diplomatic Relations
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Diplomacy is a form of communication between two parties and this is the sole way
through which international relations can be maintained. Hence, the rules concerning
the regulation of diplomatic relations are considered one of the earliest expressions of
international law. Diplomatic immunity is a principle of international law by which
certain government officials are not subjected to the jurisdiction of local courts and
other higher authorities. It is to a great extent that in order to carry on diplomatic
relations between different nations, a special body of diplomatic law is of utmost
necessity. Thus, post the adoption if the Vienna Convention on Diplomatic Relations
in 1961, the codification and liberalization from the age-old practices, customs and
treaties governing the body of diplomatic law and its relations.
Diplomatic immunity has been designed in such a way so as to protect the diplomatic
channels of communication by absolving diplomats from local jurisdiction in order
that they can perform their duties independently, with complete security and non-
intervention from external authorities. It is not for personal benefit of individuals; it
is solely for the resolve that foreign officials can do their work. Since the concept of
reciprocity applies, diplomats who are assigned to work in any country in the world
benefit equally from the concept of diplomatic immunity.
The Vienna Convention on Diplomatic Relations, 1961 and the Vienna Convention
on Consular Relations, 1963 led to the codification of most of the modern diplomatic
and consular practices, inclusive of diplomatic immunity. These conventions provide
immunity to persons in accordance with their rank in a particular diplomatic mission
or consular post and according to the requirement of immunity in performing their
responsibilities. Indeed diplomats are relieved from the civil, criminal, and
administrative jurisdiction of the sending state. However, their host country might
waive this exception. Furthermore, a diplomat’s immunity from the jurisdiction of the
sending state does not absolve him or her from the jurisdiction of his or her
homeland. It is also on the discretion of the sending state to declare a
diplomat persona non grata and he or she can be terminated from his or her mission
following inappropriate action in a mission on the part of the diplomat and the host
country is not under any obligation explain such expulsion. The Vienna Convention
on Diplomatic Relations also provides specific guidelines to be adhered to in case of
violation or abuse of diplomatic immunity, which happens in a rampant manner.
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Also, till date, no nation has objected to the provisions entailed under the Convention
and no proposals have come forward for rescinding the provisions of the same.
Theories of Diplomatic Immunity
There are a variety of different theories which have been used to justify the legal
basis of immunities that the diplomatic agent can benefit from. The three following
theories; exterritorial theory, representative character theory, and functional necessity
theory are to be discussed in this essay.
 Exterritorial Theory :-
It could be said that the doctrine of “exterritoriality ' is the first and the oldest theory
which is based on the concept that the premises of the mission is not the territory of
the receiving but it is part of the sending state. In order to clarify this point, the
diplomatic office and residential premises are treated as being the territory of the
sending state which might be considered as a sort of extension of the sending state.
This theory has received criticism from the writers of diplomatic law and judicial
decisions. First of all, it might be said that the extraterritoriality theory cannot
provide good reason for the basis of the immunities for both premises of the mission
and the diplomatic agent due to the difficulty of accepting this exemption in practice.
Additionally, the ambassador may be involved in business in his own capacity or he
might own property in the receiving state. In this situation, he is required to follow
the local legislation of the receiving state such as paying rates. However, it could be
argued that this theory has some practical values because the envoy should be treated
as if he is outside the receiving state.
With reference to the above argument, it may be generally said that this theory is out
of date and is no longer used in the international law field.
 Representative Character Theory :-
Under this traditional theory, the receiving state should deal with the envoy who
represents the sovereign state as if it deals with sovereign state. Moreover, any
attachment to the dignity of the ambassador is considered as an attachment of the
personal dignity of the sovereign. Therefore, the receiving state must treat the
ambassador similar to how it treats the presidential representative so they are not
subjected to jurisdiction of the receiving state. As a matter of fact, this theory was
supported be the decision of the supreme court of the United States of America in the
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Schooner Exchange v MacFaddom case.
However, there exists one criticism which is that the representative theory extends
immunity of the official act but does not cover the basis immunity of the private act.
 Functional Necessity Theory :-
In diplomatic law, the modern perspective tends to grant the immunities and
privileges on the basis of the “functional necessity”. According to this theory, the
diplomatic mission grants these immunities because diplomats cannot exercise their
duties perfectly unless they enjoy such privileges. It may be generally said that if the
diplomat is liable for any legal action, political interference or even personal acts
which may put the diplomat in a risky situation depending on the good will of the
receiving state to which they are accredited. Furthermore, it seems necessary to the
diplomatic agent to be granted immunity to make him feel more safe and comfortable
without any hamper in the exercise of their duties. It could be said that functional
theory is more practical and expected in diplomatic law.

Civil and Criminal Immunity

 Immunity from Civil Jurisdiction
Immunity from civil jurisdiction developed at a comparatively slower pace than the
same from criminal jurisdiction, but the concept of state practice emerged in the
eighteenth century. Such immunity developed from the fact that the State was not
authorized to control whether the initiation of civil action can be brought against the
concerned diplomatic agent or not. Civil suits can be brought before the notice of the
court by the multitude, whereas in order that the court proceedings are initiated, it is
dependent on the working of the public authority. Hence, on considering the
ramifications resulting out of these issues, immunity from civil jurisdiction was
designed in keeping with the fact that there is no injury caused by the private suits to
external relations of the receiving state. It is opined by most authors that there should
be reasonable restrictions on the idea of diplomatic immunity, but then it was court
practice to adhere to the line of absolute immunity, with particular focus in this
respect to commercial and professional activity. It was not until the Vienna
Convention on Diplomatic Relations that there were clear stipulations on the
imposition of diplomatic immunity. Three definitive restrictions were imposed on the
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 immunity from civil jurisdiction. Article 31(1) of the Vienna Convention on
Diplomatic Relations talks about a diplomatic agent who is to be immune to civil
action against him, except in the following circumstances:
i. A real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of
the mission;
ii. An action relating to succession in which the diplomatic agent is involved as
executor, administrator, heir or legatee as a private person and not on behalf of the
sending State;
iii. An action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions.
There can be a number of situations wherein recourse to initiation of a civil action
against a diplomatic agent may arise, namely, non-payment of debts or a trader’s bill
for commodities supplied for the purpose of personal utilization, restoration of hire
charges or bills for repair or reimbursement for any damage caused due to motor car
accidents to a person or property or any other loss or defaults thereof. Such cases do
not find the availability of judicial measures and the person who is an injured party to
these cases have to avail the services of the Ministry of Foreign Affairs to act as the
mediator in the disagreement. The ministry has the authority to implore the person
heading the mission and facilitate the mediation of the dispute. Under almost all
circumstances, the diplomatic agent will want to preserve his or her reputation in
both the sending and the receiving State and hence, there will be no objection from
his or her side as to the settlement of the controversy. However, if there is any kind of
objection from the diplomatic agent in this respect or he or she refuses to
compromise, serious steps can be taken against him and he can be recalled or his
immunity can be relinquished.
 Diplomatic Immunity from Criminal Jurisdiction
It can be said that diplomatic immunity from criminal jurisdiction is indubitable and
unqualified whereas there are exceptions in cases of civil and administrative
jurisdiction. Most of the courts as well as the commentators of this subject are in
support of absolute immunity from criminal prosecution for diplomatic agents. It is
the contention of many commentators that as per the theoretical and practical aspect
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of international law, diplomatic agents may not be tried or prosecuted in courts of
criminal judicature. Immunity from criminal jurisdiction is derived from the theory of
functional necessity that there should be free and uninterrupted relations between
nations and that public order should be maintained. Article 31 paragraph 1 of the
Vienna Convention on Diplomatic Relations states, “A diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving state.” This immunity
extends to all kinds of petty offences along with indictable crimes beginning with
minor transgressions of the law with respect to traffic regulations and ending with
crimes like conspiring against the national security of the receiving state or
delinquencies against humanity.
There are two kinds of immunity with respect to the criminal jurisdiction, namely,
immunity ratione personae which relates to with the broad ambit of the conduct of
the concerned official, and immunity ratione materiae which corresponds to the limit
of those acts performed while discharging functions. The former immunity is
concerned with the status of the person whereas the latter looks into the conduct.
 Immunity ratione personae:-
This is characterized by the broad scope it encompasses and that it is given to a
limited number of officials, more importantly, the heads of State while they are in
office. Even though it can be found that there exists an adequate amount of State
practice with respect to issues concerning civil suits, criminal process concerned with
the immunity before domestic jurisdictions has not been frequent. It should be noted
that the primary issue of the Arrest Warrant case entailed the concept of
immunity ratione personae. In the Arrest Warrant case, the International Court of
Justice stated that “in international law it is firmly established that…certain holders
of high-ranking office in a State, such as Head of State…enjoy immunities from
jurisdiction in other states, both civil and criminal.” In this case, the judgment
contained an important pronouncement which safeguards the immunity ratione
personae of the heads of Government and ministers of foreign affairs:
“In international law it is firmly established that, as also diplomatic and consular
agents, certain holders of high-ranking office in a State, such as the Head of State,
Head of Government and Minister for Foreign Affairs, enjoy immunities from
jurisdiction in other states, both civil and criminal.”
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Both sides in the case of Djibouti v. France before the International Court of Justice
recognized the immunity ratione persona of a Head of State. The court, in a recent
judgment, reaffirmed the “full immunity from criminal jurisdiction and
inviolability” of a head of State.
It is a suggestion that other high-ranking officials, more particularly, other ministers
and ministers of the cabinet would be able to enjoy immunity ratione personae from
foreign criminal jurisdiction while they are in office. As regards to the major acts,
immunity ratione personae with respect to foreign criminal jurisdiction covers all
acts carried out by the concerned official and also deals with the conduct of the
official in his private capacity or in his capacity preceding his term of office.
 Immunity ratione materiae
In contrast to immunity ratione personae dealt with earlier, immunity ratione
materiae deals with the act or conduct of the State officials in the discharge of their
functions. The limitation of the extent of this immunity remains unquestioned as per
literature and has been confirmed by domestic courts.
There is substantial question as to whether immunity ratione materiae covers crimes
under international law. As mentioned above, the Arrest Warrant case, it was held by
the International Court of Justice that immunity from criminal jurisdiction of the
office of a foreign minister is not to be subjected to any kind of exception from
commission of crimes under international law. Nevertheless, the court did not hint at
the question of the possibility of an exception in the case of immunity ratione
materiae of a former minister of external affairs. However, the court’s judgment
holds an obiter dictum, which is implicit in contradicting the existence of an
exception in this regard.
The juridical aftermath of diplomatic immunity from criminal jurisdiction is
procedural in nature and does not impinge on the latent substantive liability. Hence,
whenever it is proved that there is diplomatic immunity the court must drop all
proceedings against the concerned defendant. The diplomatic agent is invulnerable to
any form of execution and he can use this to his advantage to preclude any kind of
judgment or conviction against him.
Although all proceedings against the diplomatic agent may be subjected to
suspension during the period of entitlement of diplomatic immunity, it does not mean
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 that the proceedings be deemed as null and void.

Chapter 2 - Abuses of Diplomatic

Immunities
Diplomatic immunity as a concept originated out of customary principles of
international law. Its origin can be traced for the purpose of protection of
representatives of foreign governments in a country from possible retaliation in case
of international conflicts and to promote international relations. After all, the whole
purpose of diplomatic immunity is to keep foreign diplomats out of U.S. courts and
to free their governments from the need to go to court to defend them. 1 However,
today the diplomats along with their families, servants, and other staff members
abuse this privilege for escaping the prosecution from a variety of offenses. The main
division of abuses of diplomatic immunity can be done between abuses regarding
civil and criminal acts.

Abuses in case of civil liability

Diplomatic immunity also allows the diplomats to escape from civil liability in cases
of personal injury. The diplomatic immunity has now evolved more into a loophole to

1 David A. Jones, Jr. and Jonathan T. Fried, Diplomatic Immunity: Recent Developments in Law and
Practice, 85 Am. Soc. In. L 17 (1991)
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 prevent diplomats from paying damages and fines, which they would have to pay in
its absence. Diplomats and the offices in which they work are collectively referred to
as a diplomatic mission. Creditors do not have the right to sue missions individually
to get back money they owe. Thus, a person is left right less in case a diplomat
refuses to pay the rent or any kind of debt back to the creditor. For this reason, it has
been observed that the financial institutions do not extend any kinds of credit to
diplomats, as they have no legal means to ensure the recovery. Diplomats are also
exempted from import duty for items for their personal use. This has, in some
countries, led to charges that diplomatic agents are profiting personally by reselling
the "tax free" goods. Another problem with diplomats is the difficulty in enforcing of
ordinary laws such as prohibitions on double parking. Thus, it has been observed that
the diplomats do not pay parking fines, debts, and other forms of taxes and they
cannot be sued for the same.

2) Abuses through criminal act

Abuses of diplomatic immunities relating to criminal liabilities can mainly be divided
into two main categories.2The first category relates to using diplomatic bag to
smuggle goods either into or out of the receiving state and the second category
related to the crimes that have been committed by the diplomats themselves.

Crimes committed by diplomats themselves

It has been observed that the diplomatic agents, on many occasions, have acted as
principal perpetrators. There are no statistics to support the claim and no
comprehensive study has been done to determine the sheer number of crimes that
have been committed by those who are protected by diplomatic immunity. However,
several cases have come up recently which support the claim that the crimes
committed in such a case are unprecedented. The following are a few instances from
the same.

2 Leslie Shirin Farhangi, Insuring Against Abuse of Diplomatic Immunity, 38 Stan. L.RVol. 6 (1986)
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  Paris Iraq Gunfire Incident3

This incident occurred in Paris in 1978. A policeman who was escorting a Palestinian
from their embassy was killed by a gunshot, which was fired from the Iraqi Embassy.
A huge controversy raged over this gunshot, but the culprits had to be let away. The
French President's spokesperson publicly acknowledged the gravity of the crime but
stated that the suspects were covered by diplomatic immunity. The only thing that the
French government did was to make a request to the Iraqi government to put the
three suspects on trial.

 Sri Lanka Burma pyre Incident4

The Burmese Ambassador to Sri Lanka in 1979, got infuriated by seeing his wife
getting out of the car of a night club band member. The next day, neighbors around
the embassy noticed the ambassador building a pyre on the back lawn of the
embassy. The police were prevented from entering the embassy as the diplomat
claimed that this was a part of Burmese territory. He later placed his wife’s corpse on
the pyre and set it alight.

 United States Brazilian Gunfire Incident 5

In 1982, Brazilian Ambassador’s grandson shot an American citizen outside a local

club. The victim filed the suit against the ambassador and the country. These charges
were dismissed on the grounds of public immunity.

 US Guatemalan kidnapping Incident 6

3 Randy G Taylor, Shootout at the Iraqi Embassy in Paris,

., http://www.randytaylor.com/scrapbook/IraqiShootout.html

4 Final Approaches: A Memoir by Gerald Hensley, (2006, Auckland University Press, NZ)

5 Veronica L. Maginnis, Limiting Diplomatic Immunity: Lessons Learned From The 1946 Convention
On The Privileges And Immunities Of The United Nations, 28 Brook. J. Int'l L. 989

6 Leslie Maitland Werner , 4 More Held In Abduction Of Ex-Envoy's Wife,

. http://www.nytimes.com/1983/07/16/world/4-more-held-in-abduction-of-ex-e...
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 Two Guatemalan Diplomats were involved in 1983 in kidnapping of wife
of El Salvador's former ambassador to the United States in 1983. She went missing
from her home in Florida and was held for1.5million dollar, which the kidnappers
called as a "war tax." The diplomats who were involved in the case were taken into
custody but only after the State Department, was successful in negotiating with the
Guatemalan Government for the waiver of their diplomatic immunity.

 United states North Korea sexual assault Incident 7

Nam Chol, a North Korean diplomat was allegedly accused of assaulting a woman in
a park I n New York in the year 1983. He was under the protection of North Korean
Embassy for 10 months. He was forced out of the embassy when his senior was
threatened for expulsion. Post this Mr. Chol surrendered to the authorities who
ordered him to leave the country.

 London Libyan "People's Bureau" Incident 8

One of the prime cases that the world has witnessed in the recent time is that which
happened on April 17, 1984 at the London Libyan "People's Bureau". A group of
Libyan protestors opposing Colonel Muammar el-Qaddafi, the Libyan Leader, were
protesting the leader’s treatment to students in Libya before the People’s Bureau. The
protest was a peaceful one but suddenly the crowd was struck by machine gun fire
coming from the bureau. More than ten persons were injured, and five were injured
seriously. The gun fire also killed one police officer who was controlling the
protestors. The British Police surrounded the Bureau so as to prevent any entry or
exit from there. The British Home Secretary demanded that Libya should allow the
British police to enter the building to gather evidences and to find suspects. The
Libyan officials rejected this demand. The Libyan Government claimed diplomatic
immunity for each and every embassy occupants and the British Government

7 THE REGION; Korean Diplomat Heads for Home, ., http://www.nytimes.com

8 Libyan embassy shots kill policewoman,

., http://news.bbc.co.uk/onthisday/hi/dates/stories/april/17/newsid_2488000...
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 declared the diplomats as persona non grata and expelled them. The British
Government also broke off relations with Libya and this was all it could do under the
Vienna Convention.

 Britain Nigerian Kidnapping Incident 9

This incident also occurred in Britain and is related to an ex-member of the former
Nigerian government, Alhaji Umaru Dikko. Mr. Dikko was kidnapped from his
London house and was drugged and hidden in a diplomatic crate bound to Nigeria in
the year 1984. The accused involved in the kidnapping were also hidden in the crate.
When the British government wanted to take an action, the Nigerian government
refused to cooperate. All that the British Britain could do was to expel the diplomats
involved with the incident of kidnapping.

 United States Zimbabwe Child abuse Incident 10

In 1987 Karamba, a commercial attach of the Zimbabwean mission to UN, was

accused of severely abusing his children. Though, the US did not charge him with
any crime due to his diplomatic immunity, he was sent back to Zimbabwe as soon as
possible.

 Romania US marine hit and run Incident 11

In 2004, Christopher van Gothem, an American marine working with the embassy,
collided with a taxi and killed a musician in Bucharest, Romania. His blood alcohol
content was higher than the permitted limits when tested from a breath analyzer. He
refused to provide a blood sample for further testing and rushed back to US before
charges could be framed against him.

9 Adeoye Akinsanya, The Dikko Affair and Anglo-Nigerian Relations, 34 The Int. Com. L.Q 602 (1985)

10 Court Won't Bar Return of Boy In Abuse Case to Zimbabwe,

., http://www.nytimes.com/1988/01/01/nyregion/court-won-t-bar-return-of-boy.

11 Marine charged in Romanian rock star's death,

., http://www.utsandiego.com/uniontrib/20050421/news_1n21romania.html
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  US India Incident 12

In 2013, an Indian consular official Devyani Khobragade was accused of allegations

regarding non-payment of U.S. minimum wages and for fraudulently lying about the
wages to be paid on a visa application for her domestic worker. Thorough
investigation started against her and she was detained, strip-searched and held in a
prison in New York. India registered a strong protest against this investigation
process and initiated a review of privileges provided to American consular officials in
India as a result.

These cases are a few of the many-recorded instances when the diplomatic immunity
provided by the international law has been thoroughly misused by the ones holding it.
Diplomatic immunity has been providing a loophole for diplomats to first commit a
crime and then run away from the consequences of the same. The hands of the
receiving state are tied and in most of the case they are unable to proceed with any
kind of action against the perpetrators. The receiving state may try to take help from
the sending states, but this is also most of the times futile. Even if the diplomats are
sent back to the sending state, the sending states most of the time do not take
cognizance of the crime and thus, the diplomats are not punished for their acts.

12 India's foreign minister: Drop charges against diplomat,

., http://edition.cnn.com/2013/12/20/politics/india-us-diplomat/

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 CHAPTER 3 – SHOULD IMMUNITY BE ABSOLUTE

The concept of diplomatic rights was established in the mid-17th century in Europe
and since then came gradually to be accepted throughout the world. These rights
were formalized by the 1961 Vienna Convention on Diplomatic Relations, which
protects diplomats from being persecuted or prosecuted while on a diplomatic
mission.
However, if we examine the specific articles of that Vienna Convention on
Diplomatic Relations of 1961, some contrasting facts emerge.
First, Article 29 states that the person of a diplomatic agent shall be inviolable. He
shall not be liable to any form of arrest or detention. The receiving or host state shall
treat him with due respect and shall take all appropriate steps to prevent any attack on
his person, freedom or dignity. But those, who commit crimes under the protection of
Diplomatic Immunity have obviously neglected to read, or don’t want others to read,
the related articles within the Convention which strip away any absolute blanket
coverage under the guise of “diplomatic immunity” for visiting or appointed
diplomats.

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Article 38 of the Vienna Convention 1961 states that except where additional
privileges and immunities have been specifically granted by the host State, a
diplomatic agent who is a national of or permanently resident in that State shall enjoy
only immunity from jurisdiction, and inviolability, in respect of official acts
performed in the exercise of his functions.
The above article clearly differentiates between an act carried out as part of his
official duties and those done as a personal act. Any actions done personally and
outside the ambit of official consular duties shall not be covered by “diplomatic
immunity.”
Article 37 of the 1961 convention goes on to reinforce the above limitation on
immunity by stating, ‘Members of the administrative and technical staff of the
mission, together with members of their families forming part of their respective
households, shall, if they are not nationals of or permanently resident in the
receiving State, enjoy the privileges and immunities specified in articles 29to 35,
except that the immunity from civil and administrative jurisdiction of the receiving
State specified in paragraph 1 of article 31 shall not extend to acts performed
outside the course of their duties.
 Excluding immunity in case of grave crimes
Although the Vienna Convention makes no attempt to distinguish crimes according to
their gravity, one may want to draw a line between the crimes of different gravity and
also discuss the corresponding degree of immunity. Such people would argue that
diplomatic agents should not indeed be disturbed with proceedings in respect of
minor or not so important offences compared to the necessity to ensure effective
performance of diplomatic functions, but in case of serious or generally dangerous
offences the immunity of a diplomat should not become a basis for his impunity. The
practical problem is that there is no unified definition of different degrees of crimes,
as it is up to national laws of individual states to divide crimes according to their
gravity. The simple fact is that certain offences are considered minor in one state and
again grave in another or completely legal in one state and criminal acts in another.
Therefore, most scholars categorically claim, and the actual state practice follows,
that diplomatic agents cannot be tried or punished by local courts for committing a
crime under any circumstances whatsoever. The ICJ shared the latter view and
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strongly emphasised that diplomats are entitled to diplomatic immunity from any
form of criminal jurisdiction under general international law.*24
Though this may be so in the case of crimes which do not concern the general interest
of the whole international community, but only the respective society, one may still
want to re-evaluate the applicability of absolute diplomatic immunity from criminal
jurisdiction in cases of crimes against humanity, war crimes, or other crimes of such
gravity — that is international crimes. Indeed, the theory of functional necessity or,
in other words, the very same link between diplomatic immunity and necessity to
perform diplomatic functions effectively renders questionable the necessity or
legitimacy of diplomatic immunity in such cases. It is very difficult to argue that
crimes such as crimes against humanity and war crimes are consistent with the
functions of a diplomat. Thus, one can make an argument that when diplomats act in
fact, for example, like war criminals, they are not diplomats at all and thus must lose
the benefits of those immunities that diplomats are usually entitled to. In addition,
one can nowadays refer to the Rome Statute of the International Criminal Court
(ICC) and its annexes*25, which everyday gather wider and wider support among
states and may be seen even as evidence of customary international law. Differently
from the situation where states have different criminal laws and defined crimes, these
international instruments contain descriptions of possible serious international crimes
that many states have agreed upon. So, now or soon one could say that states have a
list of commonly accepted serious crimes from which diplomatic agents should not
be immune. Indeed, in that way a receiving state cannot be accused of being biased
and imposing its criminal law (also national criminal law tradition) upon foreign
representatives and it is also more difficult to simply frame a diplomat for
international crimes. States, however, seem to maintain so far the position that a
person remains an appointed diplomat, and also entitled to diplomatic immunity, until
his functions are duly terminated. Nevertheless, there has been an occasion where a
diplomat was sentenced as a war criminal. Namely, in 1948 the Japanese ambassador
to Belgium, General Oshima, was sentenced by a military tribunal for his war crimes
during the Second World War despite his diplomatic status.26
But on the other hand, can, for example, manslaughter, murder or conspiracy, be
considered as consistent with diplomatic functions? The majority take a view that we
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still should, in order to keep clarity and to avoid individual interpretation of the
Vienna Convention by states, maintain the position that diplomatic immunity from
criminal jurisdiction is unqualified and absolute. After all, the sending state retains its
full jurisdiction over its diplomatic agents*27 and it would be under international
pressure to prosecute diplomats who have committed serious crimes affecting the
interests of all states. Sending states, however, have shown little enthusiasm in
convicting their own diplomats for crimes committed abroad. An additional problem
is that many states do not have jurisdiction over crimes committed abroad. There are
also many other procedural problems such as securing the appearance of witnesses in
the sending state, which make the continuing jurisdiction of the sending state still an
ineffective measure. But this does not mean that sending states have never brought
their diplomats to trial when they have returned to their own country. For example, a
French diplomat was tried for killing his colleague in the course of a violent quarrel
in Angola when he returned to France*28; the United States took criminal proceedings
against a chargé d’affaires in regard to the homicide of a colleague in Equatorial
Guinea.*29
 Limiting immunity to official acts
Occasionally it has been suggested that diplomatic agents should enjoy their
diplomatic immunity only in connection with actions forming part of their official
functions.*30 Therefore, any illegal acts, which are private acts in character or
committed in connection with private activities, are under the jurisdiction of the
receiving state and the latter can adjudicate over the offending diplomat. On the one
hand, this can cause serious problems when deciding whether this or that action falls
under acts performed in a private capacity or as part of official functions as
numerated in article 3. Indeed, a Portuguese court once held that article 3 sets out the
general framework for diplomatic functions and must be interpreted as also covering
all other incidental actions, which are indispensable for the performance of those
general functions listed in that article.*31 The ICJ also takes a similar stand and holds
that no distinction can be drawn between acts performed in an official capacity and
those claimed to have been performed in a private capacity. *32 Even though one
could prima facie conclude that certain actions can be considered to be outside his
official duties, such actions may still be of official character if the diplomat was
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instructed by his sending state to undertake that activity. On the other hand, can
diplomatic agents and their sending state ever reasonably and credibly argue that
committing serious offences can be considered as performing official functions
(unless such offences were accidentally committed while carrying out diplomatic
functions)? Such serious offences could include all violence against the person, for
example, murder, rape, assault and battery, but not self-defence.
The scope of official functions becomes relevant also in another context. In fact, not
all acts performed by a diplomatic agent remain forever immune from the jurisdiction
of the receiving state.33 After the function of a diplomatic agent comes to an end, he
loses his diplomatic immunity and he may be sued for all his actions except for those
performed in the exercise of his official functions. The diplomat concerned of course
has reasonable time to leave the receiving state before he loses his immunity, but
whenever he chooses to return to that country, he may find himself faced with
criminal procedure. One can reasonably argue that such offences as murder, rape,
causing serious bodily injuries, kidnapping, war crimes and crimes against humanity
do not form a part of official functions and can be tried by the receiving state. The
latter can also seek for extraction of the former diplomat concerned from the sending
state or other states which exercise territorial jurisdiction over him. However, the
usability of such a possibility is again somewhat doubtful, as the sending state is
unlikely to extradite its own diplomat, and if it was ready to see the diplomat
prosecuted, it could have waived his immunity or tried him itself.
 Hierarchy of norms :-
One way of excluding diplomatic immunity in case of serious crimes is to establish a
hierarchy between norms granting such immunity and norms protecting certain
fundamental values such as human life and then show that the latter norms have
priority over the former norms. We can follow this line of argument most likely in the
case of human rights and international humanitarian law, which may not be derogated
from at all or in very limited occasions. Both diplomatic law and norms protecting
human beings in peacetime and in wartime have been described as general and
fundamental. The crucial question is now whether one or both of such sets of norms
constitute iuscogens or otherwise higher norms.
As the principles of personal inviolability and of diplomatic immunity are
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functionallity-based principles, it is very difficult to consider such principles
as iuscogens. Indeed, these two principles are strongly based on reciprocal
compromise rather than on a necessarily desirable rule deriving from some higher
source. Therefore, it is difficult to show that personal inviolability and diplomatic
immunity are connected to natural law thinking associated with the concept
of iuscogens — how can natural law justify a law destined to prevent justice because
of utility-based status?*34 Moreover, the breaches of iuscogens norms should concern
the whole international community, but diplomatic immunity creates obligations and
results in possible responsibility only between the sending and receiving states. But
at least some violations of basic human rights, for example, slavery, crimes against
humanity, genocide, may result in a breach of international obligations ergaomnes,
which indeed concerns all states.*35 Differently from diplomatic law, human rights
have frequently and expressly been regarded as iuscogens and there is one very
powerful factor to support such an assumption – fundamental human rights rules may
not be derogated from. Norms of iuscogens cannot be set aside by treaty or
acquiescence, but only by the formation of a subsequent customary law of contrary
effect.*36
Even though it may be difficult to establish in absolute certainty that human rights
are iuscogens norms, one has to agree that norms granting or protecting fundamental
human rights are important and should have priority compared to diplomatic
immunity.
4. Possible remedies against abuses of diplomatic status
Most remedies discussed previously are still theoretical and most likely require
amendment to the Vienna Convention in order to become effective and applicable.
This development is, however, unlikely, as states are not anxious to change the
Vienna Convention and put at risk a stable and more or less satisfactory and operable
system.*42 But
now we will examine certain remedies that customary international law,
the Vienna Convention, and other international instruments provide and receiving
states can make use of to deal with cases where a person enjoying diplomatic
immunity has seriously breached local or international law.
 Self-defence :-
Scholars who tend to challenge the absolute nature of diplomatic immunity from
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criminal jurisdiction often argue that the receiving state may invoke self-defence as
the basis for trial and punishment of offending diplomats. This was a popular view
among writers in the 15th to 17th centuries, when conspiracy became quite a common
crime committed by ambassadors. The main argument was that diplomatic immunity
cannot be more important than the security of the receiving state, but nevertheless the
sovereigns did not follow this line of argument and used other means to deal with the
diplomats in question.
However, one has to make a distinction between self-defence as a basis for trial and
punishment and as an immediate and proportionate reaction to a crime which can
endanger the lives of other people. The latter concept is definitely more acceptable
and reasonable and it is likely to be correct to argue that the offending diplomat could
even be killed in self-defence.*43 Therefore the receiving state may, without breaching
its obligations under the principle of personal inviolability, detain a diplomatic agent
if he commits a crime, which is a flagrant breach of law, in order to ensure both the
security of the diplomat himself and the public. This kind of detention should not be
interpreted as punishment or subjecting the diplomat to the criminal jurisdiction of
the receiving state. Consequently, self-defence could be used as an immediate
measure of prevention in the case of threat of irreparable damage to person or
property regardless of whether the threat is directed against the state, its agents, or its
nationals.
Support for the principle of self-defence as a remedy against the crimes committed
by diplomats can also be found in the commentary of the ILC on the article on
personal inviolability. It states that being inviolable, the diplomatic agent is exempted
from certain measures that would amount to direct coercion, but this, however, does
not exclude self-defence.44 The ILC considered self-defence as a measure of
immediate reaction and not as a ground for trial and punishment (the latter has
actually never left the realm of the doctrine). The ICJ, referring to the principles of
personal inviolability and diplomatic immunity from jurisdiction, also said that
naturally it does not mean that a diplomatic agent caught in the act of committing an
assault or other offence may not, on occasion, be briefly arrested by the police of the
receiving state in order to prevent the committing of the particular crime.45
It is very rare, but states have still availed themselves to the principle of self-defence.
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One of such incidents happened in Paris on 31 July 1978 following a hostage-taking
operation by a Palestinian inside the Embassy of Iraq. The ambassador, who acted as
a mediator, managed to reach an agreement with the Palestinian and the latter finally
left the mission premises escorted by two French policemen. But at the moment when
the Palestinian was going to get into the police car waiting for him at the gate of the
embassy, the diplomats started to fire at them from the mission premises, killing two
(including a policeman) and injuring others. The police returned fire immediately in
self-defence and consequently killed one of the Iraqis. They also arrested three others
for participation in the shooting and they were soon expelled from France. 46The
response of the police was surely justified and proportional and constituted an
immediate measure to eliminate danger of injuries to person.
When commenting on this case, the government of France refrained from any official
reference to the principle of self-defence. This is understandable, because there are
no clear rules when and under what circumstances this principle may be applied as a
response to serious crimes committed by diplomats, and any use of self-defence
entails the risk of arbitrary application. Self-defence should be used with due regard
to the requirement prescribed in this respect in the classic Caroline case, namely a
necessity of self-defence, instant, overwhelming, leaving no choice of means, no
moment for deliberation and proportionality.47
 Waiver of immunity :-
The reaction of the receiving state to criminal offences committed by diplomatic
agents depends largely on the gravity of the alleged offence. But when more serious
crimes are concerned and admonition is not considered as a satisfactory punishment,
it is more likely that the receiving state will request the sending state to waive the
immunity of the offending diplomat so that the latter could be tried in court.
As diplomatic immunity belongs to the sending state and not to the diplomatic agent,
it is only the sending state that has the right to waive the immunity. 48 The
waiver must
always be expressed*49 and once given the waiver is irrevocable. The requirement of
the expressis verbis waiver reduces the possibility that the receiving state mistakenly
considers, for example, an oral statement from the sending state as a valid waiver of
immunity. It has to be borne in mind that proceedings in the same case, but on
different stages, are to be regarded as a whole and thus one waiver is enough. The
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ILC also stated that it goes without saying that proceedings, in whatever court or
courts, are regarded as an indivisible whole and that immunity cannot be invoked on
appeal if an express waiver was given in the court of first instance.50
History knows of very few cases when sending states have agreed to waive the
immunity of their diplomatic agents. The sending state more likely prefers to recall
the diplomat or dismiss him from its service in such cases. 51 The request for waiver of
immunity usually means that the criminal offence in question is of such a degree that
if the sending state does not waive the immunity, the receiving state is no longer
prepared to accept the diplomat in issue as a diplomatic agent. States, however, have
waived the immunity of their diplomatic agents and one of such instances concerns a
Georgian diplomat. The second-highest ranking diplomat for
the Republic of Georgia in the United States, Gueorgui Makharadze, was involved in
a tragic automobile accident that resulted in the death of a sixteen-year-old girl, a
Brazilian national, on 3 January 1997 in Washington D.C. He was alleged to have
been driving at a speed of eighty miles per hour and under the influence of alcohol,
but due to his diplomatic status he was not given a breathalyser or blood test. This
incident was followed by public uproar, particularly when Georgia prepared to recall
the diplomat. Finally, due to intense public pressure, the Georgian president agreed,
as a moral gesture, to voluntarily waive Makhardze’s immunity. The diplomat
consequently pled guilty and currently serves his sentence in the United States.52
The waiver of immunity does not prevent committing of serious crimes, but can
allow justice to take its course where such crimes have been committed. Even then
there is no guarantee that states will waive the immunity of their diplomats and as a
traditional rule, an undertaking by the state or its agent that immunity will be waived
if dispute arises is of no legal effect.53 This question is more likely to be relevant in
case of civil matters, for example, when a landlord is reluctant to rent
accommodation to diplomats and asks for such prior statement. The Vienna
Convention and its travauxpréparatoires, however, do not say anything about the
effect of a prior agreement on waiving of diplomatic immunity. But as in the field of
sovereign immunity it is now accepted that a state may agree in advance to submit a
class of dispute to the jurisdiction of the court of another state and such agreement
may constitute a valid waiver of immunity — there seems to be no reason why the
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state, which has the sovereign power to waive diplomatic immunity, could not do so
in advance.*54 Though prior waiver of immunity in respect of criminal offences is
still very unlikely, receiving states should consider such steps in regard to such other
states whose diplomats tend to gravely misbehave.
 Persona non grata:-
Under Article 9 of the Vienna Convention on Diplomatic Relations, a receiving State
may "at any time and without having to explain its decision" declare any member of a
diplomatic staff persona non grata. A person so declared is considered unacceptable
and is usually recalled to his or her home nation. If not recalled, the receiving State
"may refuse to recognize the person concerned as a member of the mission".
Certain privileges and immunities are extended to diplomats which are not granted to
private citizens. The reason for this special status is largely of two folds: (1)
diplomats are personal representatives of their heads of states and also in effect, if not
in form, of their governments and hence of the people of their own countries. (2) in
order to carryout their duties satisfactorily, they must be free of certain restrictions
which local laws would otherwise impose. Ordinarily they enjoy exemption from
direct taxes and customs duties from the civil and criminal jurisdiction of the
countries to which they are accredited, and in fact, from the laws of the foreign state
in general. They themselves, their families, and the members of their staff are
personally inviolable. Embassies and legations, with all furnishings and their
archives, are regarded as part of the national territory of the states which diplomats
represent and are therefore immune from molestation by officials of the states or the
local governmental units in which the properties are usually located.
 International criminal procedure :-
The principles of personal inviolability and of diplomatic immunity only restrict the
jurisdiction of the receiving state and possible transit states, thus not having
an ergaomnes effect.55 Therefore, offending diplomatic agents can be prosecuted in
certain circumstances as discussed above. But in addition to those there is one more
possibility, namely where such diplomats are subject to criminal proceedings before
certain international criminal courts.56
History has witnessed the creation of several international criminal tribunals. The
first and probably the most notorious one was the International Military Tribunal of
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Nuremberg, which was created by the victors of the Second World War to try the war
criminals of Nazi Germany. Since then, international tribunals have rejected any
claim to official position as a defence.57 For example, article 7 of the Charter of the
International Military Tribunal of Nuremberg reads: “the position of defendants,
whether as Heads of States or responsible officials in Government Departments, shall
not be considered as freeing them from responsibility or mitigating punishment”. It is
clear that any claim to official status is not directed against the jurisdiction of the
relevant tribunal, but against potential liability in respect of alleged crimes.
The same issue is also addressed in the Rome Statute 58, but in addition to the question
of liability, the statute considers also the question of jurisdiction. Firstly, the Rome
Statute applies equally to all persons without any distinction based on official
capacity, and the latter in no case exempts a person from criminal
responsibility.59 But secondly, article 27, paragraph 2 of the Rome Statute clarifies
that “immunities or special procedural rules which may attach to the official capacity
of a person, whether under national or international law, shall not bar the
[International Criminal] Court from exercising its jurisdiction over such a
person”.60 Therefore, a person cannot hide behind his diplomatic immunity in order
to escape criminal proceedings before the ICC as long as the crime occurred on the
territory of a state party to the Rome Statute or the person accused of the crime is a
national of a state party to the Rome Statute. 61The latter possibility means that if the
sending state of the criminal diplomat is party to the Rome Statute and the sending
state has failed to initiate criminal proceedings or conduct such proceeding
independently or impartially, the ICC can initiate its own criminal proceedings.
However, the initiation of criminal proceedings is hindered by one factor if the
diplomat concerned is still in the receiving state and the sending state has refused to
waive its immunity. Article 98, paragraph 1 of the Rome Statute states that the ICC
may not proceed with a request for surrender which would require the requested state
to act inconsistently with its obligations under international law with respect to the
diplomatic immunity of a person, unless the ICC can first obtain the co-operation of
the respective third state for the waiver of immunity. In other words, the Rome
Statute does not permit the receiving or transit state to violate personal inviolability
or diplomatic immunity in order to extradite the criminal diplomat to the ICC. 62
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Therefore, such immunity can still be an obstacle to criminal proceedings, but at least
retired or former diplomats can no longer hide behind continuing immunity in respect
of official acts. Nevertheless, the ICC is an important step ahead in securing the
prosecution of people who otherwise would escape legal proceeding due to their
privileged status.
Such exceptions to diplomatic immunity in different international instruments do not,
however, enable us to conclude that any of those exceptions exist in customary
international law in regard to national courts.63

Conclusion
The possibilities to prosecute diplomats or other state officials who have committed
serious crimes but enjoy personal inviolability and diplomatic immunity are very
much limited, both in number and effectiveness. As amendments to the Vienna
Convention are unlikely to be achieved either through treaties or custom, so far, we
have to hope for greater readiness of sending states, in co-operation with receiving
states, to ensure prosecution of serious criminals. Hopefully, we can in the future
also rely on proceedings before the ICC, which should be the least biased and
restricted. The problem is that the principle of reciprocity prevents states from
introducing, through practice, perhaps desirable changes to diplomatic law by
establishing a hierarchy between diplomatic law on the one hand and human rights
and international humanitarian law on the other. But besides ensuring prosecution,
receiving states should also attribute more importance to the prevention of such
crimes by asking sending states to provide general and possible criminal
background information on the diplomat and explanations about why the person
left prior postings (if not because of normal termination of functions) and also by
contacting those countries where the diplomat in question has served prior terms
and inquire as to whether any problems arose involving that person.

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 References
Books

Websites

Feb. 18

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