The Diplomatic Immunity - Explained

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Introduction

Who is a Diplomat, you wonder!

Beginning with basics, as always, you must have heard about the word diplomat. A diplomat is basically a person who represents his country overseas, working with his counterparts. Diplomat word is mainly used for foreign representatives of a country, who perform negotiations and country-to-country communication with regard to international relations, peace, war, economic ties with other countries in which the countries have embassies, consulates, and high commissions. Diplomats can be described on the basis of their jobs as ambassadors, envoys, and ministers. Basically, a country sends representatives across countries, for cooperation under their respective ministry of foreign affairs. Countries that were previously colonies/ the commonwealth countries of Britain have high commissions, and with others, they have embassies and consulates.  It was historical that a person, as envoy, representing a particular king or his state, communicates with other counterparts for compliance. After World War 2, the United Nations was established where the countries came together to work for the betterment of the world. At least on paper. Take a look at this report by the United Nations Audiovisual Library of International Law for the detailed information - note.

You wonder why we are discussing this! But it was important to understand before we get into the diplomatic immunity part.

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The Diplomatic World

The Vienna Convention on Diplomatic Relations 1961:

In 1961, under the United Nations, countries signed the Viena Convention 1961 to establish diplomatic relations with each other for close coordination. It says that for universal participation by sovereign states, the high degree of observance among states parties, and the influence it has had on the international legal order, the Vienna Convention on Diplomatic Relations may claim to be the most successful of the instruments drawn up under the United Nations framework for codification and progressive development of international law. To simplify, it specifies the privileges of a diplomatic mission that enable diplomats to perform their function without fear of coercion or harassment by a host country, forming the legal basis for diplomatic immunity. Its articles are considered a cornerstone of modern international relations. Till now, out of 195 United Nations members, 192 members, including the Vatican City and Palestine, have ratified the Vienna Convention on Diplomatic Relations. Only three countries did not sign the convention - South Sudan, Solomon Island, and the Republic of Palau. It is one of the highest rectified conventions in the world.

The map illustrates the countries that ratified the Vienna Convention on Diplomatic Relations (in green) and countries that did not ratify (in red)

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The Diplomatic Immunity

The Vienna Convention of Diplomatic Relations has a total number of 53 articles, as mentioned in the official report. Here, we discuss the most controversial articles - the diplomatic immunity given to diplomats.

As we have mentioned, the Vienna Convention helps diplomats to perform their function without fear of coercion or harassment by the host country, it forms the legal basis for diplomatic immunity. Talking about its tricks, a diplomat, his family living with him in the foreign nation, have a right to perform a crime without facing any criminal prosecution, technically. Here's how.

• The premises of a diplomatic mission like an embassy, private house are inviolable and must not be entered by the host country except by permission of the head of the mission. The host country has to protect the mission from intrusion or damage. Moreover, the host country should not search the premises, nor seize its documents or property. Article 30 extends this provision to the private residence of the diplomats.

• It establishes that the archives and documents of a diplomatic mission are inviolable. The host country shall not seize or open such documents.

• The host country must permit and protect free communication between the diplomats of the mission and their home country. A diplomatic bag or case must never be opened by the host country, even on suspicion of abuse. And a diplomatic courier must never be detained.

• Diplomats must not be liable to any form of arrest or detention. They are immune from evil or criminal prosecution.

• The family members of diplomats enjoy the same articles of the convention.

Simply, the premises of a diplomat is considered as the property of the visiting country and the host country should respect that. For worst-case scenarios, like if any person, running from police for a crime, enters the premises of a diplomat, police cannot enter in this situation as well. Not at all without permission. Diplomats, again for worst-case scenarios, perform a serious crime, the host country cannot criminally charge them, including the family in any given situation.

However, the host country can take actions as mentioned below:

• The visiting country, which a diplomat is representing, can waive off the rights of the diplomat under Article 32 of the Convention at the request of the host country.

• The professional actions outside diplomat's official functions are not covered by diplomatic immunity.

• Although the diplomats are free from giving taxes and customs duties, per Article 36, if they refuse, as we have mentioned above, they cannot be charged criminally. If they are running a private business, then it is taxable, of course.

• The host country can declare a diplomat a non grata, in which he has to go his country back in given time. If he refuses to go back in given time and misses the deadline, he loses his diplomatic immunity and the host can charge him criminally.

In the case of a high population of immigrants of a visiting country in a host country, a visiting country can open offices to serve immigrants which are referred to as consulates. Consulates can be more than one, but there can be only one embassy of a visiting country in a host country. The foreign workers of a consulate, representing the same visiting country, enjoy some same immunity, although less than a diplomat.

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The Misuse of Diplomatic Immunity

Case 1: In 1967, the Burmese ambassadors to Sri Lanka shot and pyre his wife in the back yard of his house whom he suspected of having affairs. The police could not do anything as the ambassador was enjoying diplomatic immunity.

Case 2: In 1981, the son of a Ghanaian diplomat to the UN was identified as the perpetrator of two to fifteen rapes and robberies in New York. But he never faced charges because of diplomatic immunity.

Case 3: In 1983, a Saudi Arabian diplomat’s son raped a 16-year-old in the US. He was not be charged because of diplomatic immunity and was said to have voluntarily left the US. However, some months later, the girl reported encountering the accused.

Case 4: In 1984, on-duty police officer Yuonne Fletcher was murdered in London by a person shooting from inside the Libyan embassy during a protest.

Case 5: In 2001, a Russian diplomat, Andrei Knyazev hit and killed a woman while driving drunk in Ottawa. He refused to take a breathalyzer at the scene of the crash.

Case 6: In April 2012, in Manila, Panamanian diplomat Erick Bairnals was accused of raping a 19-year-old Filipino woman but was released from detention because he had diplomatic immunity.

Case 7: In 2015, Saudi Arabian diplomat Majed Hassan Ashoor, accused of raping two Nepalese women and left India without facing trial.

Case 8: In 2018, the Belgian ambassador's wife in South Korea was caught on CCTV harassing employees of a clothing shop. The ambassador lost his job, although not charged as his wife had diplomatic immunity.

Case 9: In 2019, Anne Sacoolas, the wife of an American National Security Agency employee, working in the UK was a suspect in a traffic incident involving a 19-year-old Harry. The woman was reported to be driving on the wrong side, killing the boy.

Conclusion

Diplomatic immunity was introduced to protect diplomats from harm from the host country. However, it is always-in-controversy international law often seen diplomats misusing it. Although in the past there have been cases in which host countries declare diplomats non grata, the visiting countries were seen waiving off the diplomatic immunity less often. There have been two cases in international relations, in which bilateral relations have been terminated. The first was in 1984 after a Libyan embassy staffer shot and killed a British policewoman. The second was between the US and Iran after the hostage crisis, per the Indian Express.