THIS ARTICLE WAS WRITTEN BY KRISHNA SHARMA A STUDENT OF FACULTY OF LAW, UNIVERSITY OF DELHI.
This topic, I find one of the most interesting topic of Public International Law. It’s been almost a year. We heard of Saudi Arabia’s diplomat case, Majed Hassan Ashoor, the first secretary to Saudi Embassy in New Delhi. He was accused of raping, beating and caging two Nepalese women in his residence and even evidences support these allegations against him but he left India without facing any trial? Question arises why is it so? Are we so weak that we can’t to punish a criminal who committed crime on our land or Saudi Arabia is to powerful that we can’t punish their Citizen? There is nothing such, Answer is Accused Majed Hassan Ashoor was Saudi Arabia’s diplomat to our country and he invoked diplomatic immunity for facing any trial. There are many examples of diplomats using diplomatic immunity. Before I start my topic, I think we need to understand one thing that “WHO ARE DIPLOMATS”?
A diplomat is someone who is appointed by a nation state to represent and protect that nation’s interests aboard. They conduct diplomacy with one or more other states or international organization. There are four ranks of diplomats determined by international law. It includes ambassadors, envoys, ministers and charge d’affaires.
Diplomats are also known Diplomatic agents. The status of diplomatic agents has been recognized by people of the nations from ancient times. Diplomatic agents are needed by the states in other states, certain immunities and privileges are needed to be conferred them. The tradition of Diplomatic Immunity dates back to ancient Rome. Even, it is also believe that this practice of Immunity can be found in two great Indian epics, Ramayana and Mahabharata which were written much before the dawn of Christianity. Earlier, diplomatic relations are governed with customary International law.
VIENNA CONVENTION ON DIPLOMATIC RELATIONS,1963 :-
After establishment of United Nations, it was considered that an International convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among state irrespective of their differing constitutional and social system. Considering all these factors, it came up with Vienna Convention on Diplomatic Relations which was adopted on 18th April, 1961. It came into force on 24th April, 1964.
The purpose of granting privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as presenting states. It form legal basis for diplomatic Immunity. As of April 2014, it has been ratified by 190 members. This convention consists of 53 articles and these are considered as cornerstone of modern international relations. This convention not only codified laws on diplomatic relations to a substantial extent but also led to progressive development of International law on the subject. Even International Court of Justice stated that “while no state is under any obligation to maintain diplomatic or consular relations with another state, yet it cannot fail to recognize the imperative obligations inherent therein now codified in the Vienna Convention of 1961 and 1963”
FUNCTIONS OF A DIPLOMATIC MISSION:-
According to Article 3 of this convention, the functions of a diplomatic missions consists :-
(a) Representing the sending state in the receiving state;
(b) Protecting the interest of the sending state and of its nationals in the receiving state within the limits permitted by international law; (c) Negotiating with the Government of the receiving State.
(d) Ascertaining by all lawful means conditions and developments in the receiving state , and reporting thereon to the government of the sending state.
(e) Promoting friendly relations between the sending state and the receiving state and developing their economic, cultural and scientific relations.
RULES FOR DIPLOMATIC STAFF OF THE MISSION:-
Normally, the members of the diplomatic staff of the mission should be of the nationality of the sending state. However, sending state with the consent of the receiving state may appoint nationals of receiving state as members of the diplomatic staff of its mission. Even in the case, where sending state want to appoint the nationals of third state as part of the diplomatic staff of the mission, it need consent of receiving state.
Article 9 of the convention enables the receiving state to declare any member of the diplomatic staff of the sending state as ‘Persona non grata’ it literally means ‘person not appreciated’ .Thus the receiving state may at any time notify the sending state that head of the mission or any other member of the diplomatic staff of the mission is persona non grata. No explanation is required to be given by the receiving state about its decision. The sending state in such case shall either recall the person concerned or terminate his functions with the mission. A person may also be declared non grata or not acceptable before arriving in the territory of the receiving state. If the sending state refuses or fails to carry out its obligation within a reasonable period, the sending state may refuse to recognize the person concerned as the member of the mission.
The sending state is under an obligation to notify the Ministry for foreign affairs of the receiving state about the appointments of members of the mission, their arrival and their final departure or the termination of their functions with the mission, arrival and departure of the family member, their private servants of the person who is the part of mission. Apart from this, prior notification of arrival and departure is to be given, where possible.
Article 11, deals with the size of mission. It provides that in the absence of the specific agreements as to the size of the mission, the receiving state require that size of a mission be kept within limits considered by it to be reasonable and normal having regard to the circumstances and conditions in the receiving state and to the needs of the particular mission. Generally discretion lies with the opinion of the receiving state, which in some cases becomes unreasonable or discriminatory. Thus, where the decision of the receiving state is discriminatory or otherwise unrelated to the consideration of size as such , it would be considered to be breach of Article 11 of the convention.
CLASSES OF HEADS OF MISSION:-
The Vienna convention divides the heads of Mission into the following three classes :
(a) Ambassadors or nuncios accredited to heads of the state and others heads of mission of equivalent rank; (b) Envoy, ministers and internuncio accredited to heads of state.
(c) Charges d’affaires accredited to minister for foreign Affairs.
There is no differentiation between heads of mission by reason of their class except as concern precedence and etiquette. Article 19 states that if the post of head of the mission is vacant of if head of mission is unable to perform his functions, a charge d’affaires ad interim shall be notified by sending state to receiving state.
RIGHTS AND IMMUNITIES OF THE DIPLOMATIC MISSION:-
The Vienna Convention provides the right to mission and its head to use the flag and emblem of the sending state on the premises of the mission, including the residence or the head of the mission and on his means of the transport.
Article 22 makes the premises of the mission inviolable .The establishment and functioning of a mission is required to be protected from external interference. The agents of the receiving state are not allowed to enter the premises of mission, except with the consent of its head. The receiving state is put under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. (Case of U.S diplomatic and consular staff in Tehran and Congo. Vs Uganda, these are the two case where we have seen violation of article 22 of this convention)
Article 23 provides exemption to mission from municipal dues and taxes. It provides that the sending state and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased , other than such as represent payment for specific services rendered. Such exemption shall not apply to such dues and taxes payable under the law of the receiving state by persons contracting with the sending state or head of the mission.
Article 27 states that all correspondence related to the mission and its functions, i.e the official correspondence of the mission is to be inviolable. The receiving state is to permit and protect free communication on the part of the mission for all official purposes. The mission may employ all appropriate means including diplomatic couriers and messages in codes or cipher for this purpose. The mission may, however install and use a wireless transmitter only with consent of the receiving State. The Diplomatic bags, carrying visible external marks, are not to be opened or detained. The diplomatic courier is to enjoy person inviolability and is not to be liable to any form of arrest or detention. The diplomatic bags, though are exempted from being opened or detained under the convention, the possibility of their being misused cannot be ruled out. There are some exceptional cases, the diplomatic bags may contain drugs or equipment or devices for terrorist attack. In such cases, it may not only pose a direct threat to the security of the state but also become a matter of concern for the International community. The International law Commission considered the status of the diplomatic bag and adopted draft articles on the Diplomatic Courier and the Diplomatic Bag and through it provided some exception to this immunity for larger public interest.
Article 29 The most misused immunity. This article makes the person of a diplomatic agent inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person , freedom or dignity . This inviolability is distinct from the immunity from criminal jurisdiction. Similarly, the private residence of the diplomatic agent, his papers, correspondence and his property shall also enjoy the inviolability.
Article 31 A diplomatic agents is to enjoy immunity from the criminal jurisdiction of the receiving state. A diplomatic agent guilty of serious or persistent breaches may be declared persona non grata. He shall also enjoy immunity from its civil and administrative jurisdiction but there are some exceptions to it. A diplomatic agent is under no obligation to give evidence as a witness. But notable point is that Immunity of diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending state.
Article 44 states that even in case of armed conflict, the receiving state must grant all facilities in order to enable persons enjoying privileges and immunities and their family members to leave the state at the earliest possible moment.
WAIVER OF IMMUNITY: –
Article 32 deals with waiver of immunity. The sending state may waive the immunity of diplomatic agents and other persons enjoying immunity under Article 37, from the jurisdiction of the receiving state. Waiver must always be express. Waiver of Immunity from jurisdiction in respect of civil or administration proceeding is not imply waiver of immunity in respect of the execution of the judgment. For execution of judgment, a separate waiver is necessary.
CASES OF ABUSE OF DIPLOMATIC IMMUNITY:-
Growing cases of abuse of diplomatic immunity has raised a question on whether the Vienna convention should re- examine these immunities. Here are some following examples:-
- In 1967, the Burmese ambassador, Sao Boonwaa to Sri- Lanka shot his wife whom he suspected having a affair. The next morning, neighbor saw three Buddhist monks conducting final rites over a funeral pyre. First he was arrested and even denied bail but later he invoked diplomatic Immunity and he faced no trial for killing of his wife.
- In 1981, the son of a Ghanaian diplomat to the UN was identified as the perpetrator of at least two – and possibly 15 rapes and robberies in New York. But he never faced charges because he, as a family member, enjoyed diplomatic Immunity.
- This incident may surprise you, in 1987, a delegate from Barbados to the UN sought to extend diplomatic Immunity to his dog after it bit several neighbors in Pelham, New York and warned of “possible international consequences” if any action was taken against the German shepherd.
Normally it don’t happen but there are some exceptional cases where diplomatic immunity is “waived off” –
- 1997, the second highest ranking Georgian diplomat in the US was involved in a car accident that killed a 16 year old Brazilian girl in Washington DC. The diplomat was alleged to have been driving drunk and too fast, nut escaped a breathalyzer test due to immunity. Public uproar was amplified after Georgia prepared to recall him but Georgian president finally bowed to the pressure and waived the diplomatic immunity. He pleaded guilty and served his sentence in US.
- In 1999, the wife of Japanese consul- general in Vancouver showed up in hospital with two black eyes and a bruised neck. She told doctors that her husband had beaten her and even diplomat admitted of punching her but immunity prevented police from arresting him. After a public pressure, Japanese government waived the diplomatic’s immunity. He pleaded guilty in a Canadian Court but was discharged; he was nonetheless recalled in Japan where he assigned to office duty and had his pay cut.
- In April 2012, in manila Panamanian diplomat Erick Bairnals shcks was accused of raping a 19 year old Filipino woman, but released from the detention because he enjoyed diplomatic Immunity.
- In January 2011, Raymond Davis, A CIA contractor, shot dead two armed men in Lahore, Pakistan. US government contended that he was by protected by diplomatic Immunity because of his employment with the US consulate in Lahore. But later it was emerged that he is neither a diplomat or enjoy diplomatic immunity but he was charged for double homicide and illegal possession of firearm and tried in Pakistani’s court, where he apologized to the victim’s family. Finally, charges were dropped after a US paid $ 2.3 million to the families to settle the dispute and Davis immediately departed Pakistan.
- In December 2013, Devyani khobragade, then the Deputy Consul General of the Consulate general of India in New York City was charged and arrested by US authorities with committing visa fraud and her maid reported her local authorities, this case received wide attention particularly in India. In this case also, diplomatic immunity was used to protect Devyani khobragade.
- In 2014, a Malaysian diplomat, Md. Rizalman Ismail at the high Commission in wellington claimed diplomatic Immunity after facing charges of burglary and assault with intent to rape after allegedly following a 21 year old woman to her home. The diplomat returned to Malaysia with the case going, provoking a sharp reaction from Prime Minister John Key. The Malaysian eventually agreed to send the diplomat back and set the trail. On 30th November 2015, Rizalman pleaded guilty of the charge of incident assault in this case and on 4february, 2016 Rizalman was sentenced to nine months home detention. He will be deported from New Zealand upon completing his sentence.
In history of International Relations we have witness cases where this “Diplomatic Immunity” resulted to end of bilateral relations. First was in 1979, between US and Iran after the hostage crisis. Second in 1984, after a Libyan embassy staff shot and killed a British policewoman.
As we conclude, we have read who are diplomats? What are their functions and what immunities they enjoy? We should understood the Diplomatic Immunity is aimed to enabling representative of foreign countries to carry out their jobs efficiently and to protect them from any hostility of that country. But here we have read some incident that raises question on this immunity. This immunity is provided to protect them from any “harm” and to protect their country from bad reputation. We have seen cases where generally immunity is not waived off till there is huge pressure publicly or politically. We have seen cases where even country took some extreme steps end of bilateral ties and which is not good sign in 21st century of global village. Question here is, if a Diplomat act outside his business of conducting International relation and commits a crime which is severe and against society as a large, irrespective of country where he commit, question is whether he should be still protected under Diplomatic Immunity after such act?. A Diplomat is a representative of his country; such unpleasant acts bring to a country which he represents.
“Diplomatic Immunity is not a license to go crazy “we should understand this.
Growing Cases of such abuse of diplomatic Immunity and recent Saudi diplomat case, where I think those women need to be delivered justice. It’s almost been 50 year to Vienna convention. UN and all nations need to come together to contemplate all issues very well and form a mechanism specially over this immunity power, So that diplomats like Ashoor and may others can’t get away by doing wrong and by this doing this, International Community will place human life and dignity all above.