4.1.2 Diplomatic asylum will be at stake
Diplomatic asylum is the asylum which a state grants to a fugitive in its embassy or legation situated within the territory of another state. Territorial sovereignty is a fundamental principle of international law. Diplomatic asylum derogates from the territorial sovereignty, since it withdraws the fugitive from the jurisdiction of the territorial state.
From the above discussions on the effects of diplomatic immunity and protection extended to diplomats in the Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations. One is left with mind blogging questions on the whole issue of diplomatic immunity and various issues surrounding the subject. Some of the questions are:-
4.2 Is diplomatic immunity absolute?
Diplomatic immunity is absolute. I would argue, though, that the general ignorance concerning what diplomatic immunity is, and whether such immunity extends to all acts of any nature committed by an individual, even if that individual does qualify as a diplomat. All other questions are a distraction. 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 of 1961, some interesting 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 demand the release of diplomats who have violated the convention by committing serious crimes like murder, human trafficking, grievous abuse of domestic worker just to mention but a few, on ground 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.
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.
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 29 to 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.
To explain further, on the same issue, is the Vienna Convention on Consular Relations of 1963, the later treaty extends and further clarifies, that where there may be a conflict, it would supersede the earlier treaty. In Section II, Article 41 in its first paragraph regarding the “Personal inviolability of consular officers”:
In reality, whether a prosecution proceeds against a high-ranking foreign state representative will depend on many factors, political and legal, not least the particular features of the prosecuting state’s laws on jurisdiction and procedures. In most cases the issue of the defendant’s immunity is usually raised and considered by the national court concerned. In others, it appears to have been ignored or overlooked, and this factor may be of some significance given the approach taken by the International Court of Justice (ICJ) in the case concerning Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v France ). The ICJ suggested that, in the case of functional immunity, it is for the official’s home state to notify the state seeking to exercise jurisdiction and that the latter is not obliged to raise or consider the matter of its own accord . Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.
The law here would seem to be quite clear. If the accused person ‘diplomat’ was in the scene of crime on anything other than official consular business, and if he/she committed serious crimes i.e. murder, “in cold blood”, then legal authorities in the receiving state will be absolutely within their rights under the Vienna Conventions to be hold the ‘diplomat’ him for trial only after his diplomatic immunity has been waived.
If he/she is released before a judicial determination regarding his claim of immunity, or if he is found to be properly detained but is released anyhow before standing trial for the killings or serious crimes, it would be not because he has diplomatic immunity, but because of political pressure from his/her country or a state that has super powers, i.e. the US. But this would be something that is outside of the realm of the law.
This leads me to my other disturbing question;-
4.3 Is diplomatic immunity and protection on trial?
At a quick glance, this seems to be a pretty straight forward ‘yes’ and ‘no’ question. Many commentators have been tempted to jump to one side or another of the equation only sooner or later realize that any presumptuous conclusions, in favour of diplomatic immunity will be condoning impunity and against will destroying the whole goal international relations.
Diplomatic relations and the laws surrounding diplomatic immunity have freed many foreign diplomats serving around the world and have even saved lives but they have also given diplomats the notion that committing petty or even serious crimes is acceptable. Many countries have recently found themselves at an impasse while trying to cater to the rights of foreign political visitors, and still uphold the human rights of its citizens.
What is on trial is not diplomatic immunity but rather the two conventions which in most cases have prevented the prosecution of diplomats in the name that they enjoy diplomatic immunity.
5 Which law takes precedence between diplomatic immunity and human rights?
One may assert that human rights take precedence over diplomatic immunity in international law as they constitute a higher good.
4.8 Is diplomatic immunity unnecessary evil in the globe?
The key question surrounding diplomatic immunity and diplomatic studies is if diplomatic immunity is evil and should be done away with. The answer to the question is that diplomatic is necessary for the efficient functioning of foreign relations between states. However, limiting measures should be put in place to curb the numerous cases of abuse that continue to soar up. This could be done through some of the measures that have been previously recommended by a number of scholars such as amendment of the Vienna Convention on Diplomatic Relations, use of the functional necessity theory, bilateral treaties and formation of a permanent International Diplomatic Criminal Court.
4.9 Is diplomatic immunity necessary regardless of all the abuses being witnessed?
Diplomacy is essential to maintain international relation between two nations and for that the diplomats play an indispensible role. Diplomatic immunity is, therefore, necessary for the smooth delivery of the duties of the diplomats, and to grant them impunity from coercion, unjust pressurization and marginalization by the host nation. Simply put, if one nation can castigate the diplomats of another nation, then the reverse also holds good! Under such circumstances, diplomats would become mere pawns and diplomacy will be impossible.
Despite the noticeable abuses of diplomatic immunity, my submission is in the negative. An old Latinism has it thus, whenever there is a society, there should be law . By the same token, societal laws must be just and fair to all its subjects. Hence diplomatic law and diplomatic immunity should remain.
It is important that law enforcement and judicial authorities of the globe always treat foreign diplomatic and consular personnel with respect and with due regard for the privileges and immunities to which they are entitled under international law. Any failure to do so has the potential of casting doubt on the commitment of the sovereign countries to carry out their international obligations or of negatively influencing larger foreign policy interests. However, appropriate caution should not become a total “hands off’ attitude in connection with criminal law enforcement actions involving diplomats.