Abuse of immunity and International Criminal Law

Part I: History and background

Diplomatic privileges and immunities are granted in order that the persons entitled to them may better perform their functions and not for the benefit of those persons.[1]

Privileges and immunities to diplomatic envoys is a long-standing norm of international law. As mentioned in Vienna Convention on Diplomatic Relation 1961 (VCDR),[2] ‘The establishment of diplomatic relations between States, and of permanent diplomatic missions takes place by mutual consent’.[3] The VCDR is one of the most widely based multilateral regime in international relations.[4] Whereas, the diplomatic immunity is respected and seen as a crucial element. In this regard it is considered as important as that ‘the first principle to become firmly established ...[is] that of diplomatic immunity’.[5] Furthermore, it is also an important factor to make better relations between two states, where governments and individuals, both wish their diplomatic agents to discharge their duties imposed on them according to the VCDR. Particularly, the duty, ‘to respect the laws and regulations of the receiving state’.[6] In contrast, although the diplomatic agents are allowed to enjoy personal as well as functional immunities.[7] However, in exceptional cases those diplomats may be subjected to perpetration of any offence if leads to the serious international crimes and they may be prosecuted once they are out of their official capacity of enjoying these privileges.[8]

In the ancient times the formal sending of envoys as representatives of nation states; or the first proper record on the diplomatic relations may be traced back in the practice of ancient Greek and Roman Empires.[9] Barker commented on the failing of Greek diplomatic process as a lack of trust in its own ambassadors.[10] While Nicolson pointed out reason of failing Venetian Diplomacy, as a belief that all the diplomats came for their secret missions.[11] In addition to that, threat to abuse of diplomatic role also found traces in Byzantine diplomacy, who used to monitor the visitor ambassadors against spying.[12] Later, the French diplomacy was seen as a sad havoc. Even in the time of Louis XV, diplomats were engaged in confidential correspondence without any knowledge to their seniors on a particular mission.[13]

In the early 19^th century, it was argued that the present well known concept of state sovereign immunity was linked and even has derived from the immunity of diplomats and ambassadors. By comparison, in more recent times (70s) this trend is reversed (diplomatic immunity is deriving from sovereign immunity).[14] Moreover, the practice of customary basis made a place in VCDR and the member states believed that such a thing could contribute to friendly relations among countries irrespective of their legal and social differences. Mainly, in the early years of the operation of the VCDR, suspicion of spying was the most common reason for declaring a diplomatic agent persona non grata[15].

In 1971, following the number of repeated warnings to the Soviet Union, to reduce the number of their Komitet Gosudarstvennoy Bezopasnosti (KGB)[16] agents in diplomatic and trade establishments in London. The British Government requested the withdrawal of 105 Soviet Officials, because that was considered as a threat to the security of the United Kingdom.[17] On the other hand the circular note from the United States Department of States (USDS), in the mid of 1985, stated that ‘the accreditation of diplomats … is solely within the discretion of the Department of State’, and as a criteria to be recognized as a diplomatic agent, a person must possess a recognized diplomatic title and perform duties of a diplomatic nature.[18] In 2004, the United States expelled many Saudi Arabians on the ground of their activities, which were considered as outside the scope of their mission and diplomatic functions.[19]

It can be argued that states’ relations are widely based on the acts of their ambassadors enjoying their immunities in the receiving states; and functions of a diplomatic agent is that much of the importance that it can turn the relations of two nations hostile. Hence, more chaos and disorder eventually be on the rise between/among countries' relations, should the privileges are used for personal gain or perpetrating to any serious crime recognized in international law.

Part II: Types of abuses (to be continued...)

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[1] United Nations Conference on Diplomatic Intercourse and Immunities, Vienna 2 March - 14 April 1961 A/CONF20/14/Add1 <http://legal.un.org/diplomaticconferences/diplintercourse-1961/vol/english/vol_II_e.pdf> accessed 9 March 2015

[2] Vienna Convention on Diplomatic Relations 1961, Done at Vienna on 18 April 1961 <http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf> accessed 9 March 2015

[3] ibid art 2

[4] Jonathan Brown, ‘Diplomatic immunity: state practice under the Vienna Convention on Diplomatic Relations’ [1988] ICLQ 53

[5] J Craig Barker, The Abuse of Diplomatic Privileges and Immunities (Dartmouth, England 1996) 32

[6] ibid 77

[7] For distinction between personal and functional immunities See Antonio Cassese, International Criminal Law (2^nd edn, OUP 2008) 302-303; Gerhard Werle, Principles of International Criminal Law (2^nd edn, CUP 2009) para 645-649

[8] Antonio Cassese, International Criminal Law (OUP 2003) 167

[9] For history See Linda S. Frey and Marsha L Frey, The History of Diplomatic Immunity (Ohio State University Press, Ohio 1999); United Nations, Department of Public Information. <http://www.un.org/wcm/webdav/site/visitors/shared/documents/pdfs/FS_Diplomatic%20privileges.pdf> accessed 9 March 2015

[10] Barker (n 5) 15

[11] ibid 19

[12] ibid 18

[13] For some examples of abuse of diplomacy from 16^th and 18^th Century, ibid 21-24.

[14] Theodore R Giuttari, The American Law of Sovereign Immunity (Praeger Publishers, USA 1970)

[15] The Latin term which means ‘an unwelcome person’.

[16] The security agency of the former Soviet Union, which functioned from 1954 to 1991, in English termed as ‘The Committee for State Security’.

[17] Eileen Denza, Diplomatic Law (3^rd Edition, OUP, Oxford 2008) 19

[18] U.S Department of State, Circular Note to the Chief of Mission, <http://www.state.gov/documents/organization/232818.pdf> accessed 9 March 2015

[19] Denza (n 17) 19