Personal Inviolability and Diplomatic Immunity in Respect of Serious Crimes

AuthorRené Värk
Pages110-119

René Värk

Personal Inviolability and Diplomatic Immunity in Respect of Serious Crimes

Personal inviolability and diplomatic immunity from criminal jurisdiction still remain among the most problematic issues in modern diplomatic law. Such special privileges have for long effectively protected diplomatic representatives and other foreign officials from interference with their freedom, which may be attendant upon penal proceeding, the objective of which is the curtailment of financial or personal liberty in the interests of punishment or deterrence. However, everyday practice indicates that both states and diplomatic agents still have problems with interpreting the relevant provisions of the Vienna Convention on Diplomatic Immunity1. Unfortunately the diplomats are more likely those who occasionally tend to misinterpret the extent of their privileges and thus make use or, to be more precise and correct, abuse their inviolability and immunity. Such abuses may still be tolerable by the receiving state in the name of securing effective performance of diplomatic functions, if these abuses involve merely minor offences or crimes. But do receiving states and the international community have to tolerate personal inviolability and diplomatic immunity in case of serious crimes such as murder and conspiracy as well as war crimes and crimes against humanity? The present article intends to address such issues and examine possible solutions to these problems and possible remedies against abuses of diplomatic status.

1. General observations

Peoples have recognised the special status of foreign representatives already since ancient times and therefore some of the fundamental principles concerning such representatives, for example, personal inviolability, are as old as the first civilisations. Since then, diplomatic law has continuously developed and also changed, but the vital principles have survived that evolution. Nowadays diplomatic law has, in many respects, become a unique part of public international law. A vast majority of states, if not all, apply its rules every single day, as they are in diplomatic relations with one another. But when taking into consideration such wide and extensive application of diplomatic law, it is surprising to learn how exceptionally high the level of law-obedience is among the relevant states2. Why is that? Firstly, the rules of diplomatic law had long been stable and established before they were codified into the Vienna Convention3. Secondly, the simple principle of reciprocity represents an effective protection against the breaches of diplomatic law by states. As most states are normally both sending and receiving states, they can respond to any inappropriate actions from another state towards its diplomatic agents with similar measures against the diplomats of the offending state. Therefore, the principle of reciprocity with common interests of states guarantees efficient application of diplomatic law and also general obedience4. But at the same time, this principle can block desirable changes and innovations in connection with diplomatic immunity from criminal jurisdiction - states cannot initiate an emergence of new customary international law to deal with new developments.

As the concept of diplomatic immunity renders it virtually impossible for any local authority to exercise its power over duly appointed diplomatic agents, it has naturally caused many social problems. The general understanding is that diplomatic status does not in any way give diplomatic agents permission to violate the laws and regulations of the receiving state5 and the overwhelming majority of diplomats are indeed law-obedient. Thus occasional abuses of their privileged status, for example, drunk-driving or causing a car accident, which are brought to public attention, tend to receive a disproportional amount of publicity compared to other similar cases, where the person concerned is without such special status, and therefore serve to prejudice public attitude toward the practice of personal inviolability and diplomatic immunity. However, regardless of the severity of offences, states have so far refrained from serious retaliatory actions due to several factors. Firstly, states maintain a substantial number of diplomatic agents abroad and they do not want to endanger the situation of their diplomats in different and not always particularly safe countries. Secondly, there may be a mentionable community of expatriates of the receiving state in the sending state and therefore the extent to which receiving states will avail themselves of the opportunities for response to abuse of diplomatic status depends in large measures upon whether that expatriated community is perceived to be at risk. For example, in the serious Libyan People's Bureau incident the United Kingdom restrained itself from more harsh reactions as it was concerned with the security and well-being of some 8,000 Britons resident in Libya6.

Personal inviolability and diplomatic immunity has been extended traditionally also to heads of state and even to members of government. Such people have committed even more serious and heinous crimes as leaders of their countries than diplomatic agents.

2. Personal inviolability

Before going any further with the issue of diplomatic immunity, we should look at the principle of personal inviolability, which is the oldest established rule of diplomatic law and also closely connected with diplomatic immunity. There is no doubt that the principle of inviolability of the person of a diplomatic representative is still the corner stone of diplomatic law. In the course of its historic development, the scope of personal inviolability became absolute, regardless of the severity of concerned offences. Although authors have long maintained that there is a right to self-defence, in the form of arrest or judicial proceeding, against an immediate threat from a diplomat, there does not appear to have been an instance where a state has officially relied on such a right and arrested the diplomat concerned7. However, before the Vienna Conference for Diplomatic Intercourse and Immunities, which adopted the Vienna Convention, the International Law Commission (ILC) still mentioned that personal inviolability does not exclude either self-defence or, in exceptional circumstances, other measures to prevent a diplomat from committing a crime or an offence8.

At the same Vienna Conference there was very little discussion on the draft article concerning personal inviolability and article 29 provides that a "diplomat shall not be liable to any form of arrest or detention" and "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"9. As we can see, the article itself makes no effort to define or explain the concept or extent of inviolability. Nevertheless, the article mentions two important aspects of this principle. Firstly, diplomatic agents are free from any sort of arrest or detention by the authorities of the receiving state and secondly, the latter has a duty to protect diplomatic agents10. Personal inviolability is a physical privilege in nature and thus it is distinct from the diplomatic immunity from criminal jurisdiction. As in case of the inviolability of mission premises, there is no express reservation for action in cases of emergency, for example, a drunken diplomat with a loaded gun in a public place11.

Thus due to personal inviolability, a diplomatic agent may not be arrested or detained in any circumstances12. The police can, of course, arrest such a person in good faith, but when they learn that the person is entitled to personal inviolability, the police must release him immediately. Diplomatic history has seen very few situations where states have not respected personal inviolability. Probably the best-known incidence occurred in Teheran, Iran, where on 4 November 1979, the Embassy of the United States was invaded by militant students and all personnel of the embassy were seized as hostages. The purpose of such action was to secure the extraction of the former Shah by the United States into the hands of new Islamic regime. The Iranian authorities subsequently approved the actions of the militant students and therefore took responsibility for such actions and grave breaches of the Vienna Convention. The International Court of Justice (ICJ) stated in the judgement on those events that the Iranian actions were "clear and serious violations" of article 29 and the decision of the Iranian authorities to continue the occupation of the mission premises "gave rise to repeated and multiple breaches of the applicable provisions of the [Vienna] Convention"13. The ICJ clearly condemned the Iranian actions, but the Iranian officials still alleged that these actions were warranted under Islamic law although they were indeed prohibited by the convention14.

3. Diplomatic immunity from criminal jurisdiction
3.1. Concept of diplomatic immunity

The immunity of a diplomatic representative from the criminal jurisdiction of the receiving state was, in earlier literature, regarded as indistinguishable from his personal inviolability. At the time when the principle of personal inviolability was first clearly established, it was unusual for criminal proceedings to take place...

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