Has diplomatic immunity become limitless?
|follow us on twitter||Follow @intolegalworld|
Written By: Florina Laza
There are thousands of people who live in foreign countries and who are effectively above the law. They are ambassadors, diplomats, their staff and their family. Their purpose is to represent their foreign countries’ best interests by supporting communications and negotiations between the sending and the hosting country. But what is diplomatic immunity and how far does it extend?
The inviolability of diplomats is one of the oldest rules of International Law and can be traced back to the ancient times when it was well-known that messengers could not be maltreated, arrested or detained. The violation of this rule could have had serious consequences and could have constituted in an act of war. Actually, the infamous Mongol leader Genghis Khan was known to invade and destroy cities only for violations of this bilaterally accepted agreement. Also, references towards the practice of guaranteeing such immunity can be found even in ancient Indian poetry.
Today, modern diplomatic immunity is based on the 1961 Vienna Convention on diplomatic relations which states in Article 29 that “Diplomats must not be liable to any form of arrest or detention. They are immune from civil or criminal prosecution (…)“. But, of course, diplomatic immunity is not a long-lasting license for impunity, and envoys still have to fulfill certain obligations.
In short, diplomatic immunity means that diplomats are generally not bound to the laws of host countries where they perform their civic duties. The main objective of this form of legal immunity is to prevent the hosting country form intervening with the diplomat’s work and, also, protect him from biased incarceration or execution. The diplomatic immunity is divided into 2 categories:
First is the immunity of the embassy premises, furnishings and other properties such as buildings, vehicles, archives and diplomatic communication as stated in Article 22 from the Vienna Convention on diplomatic relations: “The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission“. A notable case is the one of Julian Assange (the founder of WikiLeaks) who chose to hide in Ecuador’s Embassy from London in order to protect himself from the wrongful prosecution he believes may face if he is extradited to the US. In this case, the United Kingdom police continued to respect the inviolability of the embassy and remained at the gates of its premises while Mr. Assange had been granted political asylum.
The second type is the immunity of the personnel working in the embassy. This means that a diplomat cannot be charged, arrested or detained. In addition, his family enjoys certain privileges in the hosting state which is mentioned in Article 37 of the same convention: “The family members of diplomats that are living in the host country enjoy most of the same protections as the diplomats themselves“. Also, privileges and immunities can apply to the administrative and technical staffs who have limited immunity from civil jurisdiction but only on official duties. Likewise, the personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds. For example, if he is suspected of detaining prohibited or illegal material. And those types of inspections shall be conducted only in the presence of the diplomatic agent or of his authorized representative.
However, this immunity at least, in theory, is not limitless; it can be waived by the sending country allowing the hosting country to prosecute. This is related to a case from 2002 when two Colombian diplomats, stationed in London, had their immunity waived to face charges related to a murder outside a supermarket. Howsoever, if a person who enjoys diplomatic immunity is accused of a crime, but their immunity isn’t waived, it’s normal practice from the host country to declare the person “persona non grata” (Latin for “person not appreciated”). They are then expected to leave the country in the next 72 hours otherwise the hosting authority can, in this case, consider the envoy as an ordinary person and act accordingly.
Despite its good legal basis, diplomatic immunity is still used in practice as a shield against criminal indictments or civil obligations. It was reported many times that diplomats were suspected to have committed many crimes but were able to walk free with no charge or prosecution only by fluttering their diplomatic status. We can take as an example the horrific case of 1967 when Burma’s Ambassador (today known as Myanmar) in Sri Lanka shot dead his wife who he believed at the time was having an affair. The envoy was initially arrested but was later released to leave the country because of his diplomatic status. The truth is he never had to face prosecution for the killing of his wife despite his heinous actions.
Many high profile cases have been depicted in the public over the years, and they all form an all-encompassing mirror for the current situation that frames the legal image of today’s use of diplomatic immunity.
In July 2017, fatal shots were fired in an apartment on the Israeli Embassy compound in the heart of Amman, the capital of Jordan. The shooting led to the deaths of a 17-year-old carpenter Palestinian Muslim Mohamed Al-Jawawdeh, a refugee in Jordan, who allegedly tried to attack the embassy security guard with a screwdriver and a well-known Jordanian Christian surgeon, Dr. Bashar Hamarneh who was an innocent witness from whom the flat had been rented.
However, the shooter managed to travel back to his home country, Israel, under diplomatic immunity and was even welcomed as a hero by the prime-minister who hugged and praised him for his actions. The incident shocked the whole world since the security guard walked freely after killing two people with no consequences or explanations, thus, provoking the worst diplomatic crisis since the peace agreement was signed in 1994 between the two sovereign states.
On 13 August 2017, Grace Mugabe, the wife of the former president of Zimbabwe, allegedly assaulted a 20-year-old model, whipping her with an extension cord that cut off her forehead, in a hotel room in Sandton, Johannesburg’s upmarket central business district in South Africa. Even so, she returned to her home country with no attempt from the Police Service to arrest her, and that is because she has been granted diplomatic immunity from the South African government.
The incident raised questions about whether she should have been granted immunity since she was not a visiting head of state or government, nor a diplomat representing her country. In fact, she was on a private, not official visit to South Africa. It was obvious that the government granted diplomatic immunity without respecting the law, but following a political agenda.
In September 2017, a 13-year-old boy was stabbed multiple times with a pair of scissors by a pre-teen daughter of a German diplomat. The incident took place around 1:00 pm at the British International School of Washington, a private school in Georgetown area of Washington, DC. Police and other emergency personnel were called to the school and the victim was rushed to the hospital. However, the girl’s diplomatic immunity prevented the police from charging or arresting her.
At the end of September 2015, Majet Ashoor, the first secretary at the Saudi Embassy in Delhi, had to leave India after he was accused of holding in captivity, beating and raping two Nepali women that he hired as domestic workers. At the time, Indian people gathered on the streets and called for justice, but later it was confirmed that the envoy was protected by diplomatic immunity and so, there was nothing to be done.
In December 2013, Devyiani Khobragade was working at the Indian consulate in New York when she was arrested for employing a maid at below minimum wage. In addition, she was also charged with visa fraud and making false statements. At the time the Indian government insisted that she was a diplomat and she should be treated as such, but her status as an employee in the New York consulate, rather than the embassy, meant that only her official duties were covered. Ultimately, she was expelled from the country and received as a national hero in her home country.
Moreover, on March 2017, a Canadian internet publication, CityNews, disclosed a year’s worth of secret reports concerning a list of serious crimes in which several embassies and consulates are involved such as human trafficking, underpayment, verbal and physical abuse and withholding of personal documents of domestic workers. The Police are still investigating the complaints, but it’s not going to be a surprise if there won’t be presented any notable results.
It appears that countries favor the appearances over social justice. Therefore, even to this day, this legal immunity is used as a tool in the hand of the powerful and it is obvious that such a situation of impunity can create unresolved criminal situations with repercussions at a larger scale. In the past decades, diplomats have also been accused of much more serious crimes including drug smuggling, money laundering, spying, tax evasion, and even slavery and murder, although, in my opinion, this time it’s not the fault of laws, but rather the problem of governments that apply them to fit their political interests and to serve the purpose of preserving long-lasting diplomatic relations even when the cost is a human life.