Diplomatic Immunity
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This Blog is written by Sanjana Dwivedi from University of Petroleum and Energy Studies, Dehradun. Edited by Yash Jain.
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INTRODUCTION
This article will talk about the questions which generally rise in everyone’s mind which someone talks about diplomatic immunity. This article will further discuss whether diplomatic immunity is needed, whether it lead to abusive powers, whether too much privilege is being provided to the diplomats.
What is a diplomat?
When national government elects a person for the management of foreign affairs, negotiations with other nation and to resolve economic, political and social relation with other nation or nations is said to be a diplomat.
What is diplomatic immunity?
Diplomatic immunity [1] is the having exemption or privilege from taxes and classified laws provide by the country in which they have been assigned there work.
SIGNIFICANCE OF THE DEVELOPMENT
Every development has its after effects this law have its significance as well. Further this article will be discussing the history of this development and need as well.
History behind diplomatic immunity
From the beginning of 17th century, collaboration between sovereign states/nations has required secure methods for correspondence between a legislature and its delegates so as to encourage relations between governments. Entities which were sovereign had since quite a while ago perceived the idea of diplomatic immunity, accepting sovereign as being important to guarantee that these channels of correspondence are saved. The idea of diplomatic immunity has long-standing roots in global practice, and can be followed as far back as the ancient establishments of China, India, and Egypt (1). It has been recorded by a Greek historian, Thucydides that the old Greek City-States consistently traded extraordinary missions, and ministers were respectfully rewarded by the accepting City-State.
The treaty related relations with neighboring nations which consisted of strong diplomatic actions were also maintained by the early romans. The sovereign states like Greece and Rome started applying the doctrine of diplomatic immunity and after that the diplomats used to enjoy special privilege of escaping form the liability of civil and as well criminal suits and the sovereign of the state had the duty to protect the diplomat. This power had more chances of abusiveness as even crimes like ganging up against the sovereign did not come under the ambit of punishment. There was only one thing given to the sovereign to practice that the sovereign can declare a diplomat as persona non grata which means an unwelcomed person and had the power to through the person out of the territory.
Economic and political contact between countries developed, so too did the requirement for ordinary diplomatic contact between countries. Before the end of the middle Ages, diplomacy was being applied in a way intently taking after present day practice, and the acknowledgment of diplomatic immunity by getting States had become a standard (2). Hugo Grotius, came out with the doctrine of quasi extra territorium [2] which means “as if outside the territory” and stated that law of nations have two maxims related to delegates or ministers which are established as rules: “The first is that delegates or ministers must be received and the second there should be no harm to them”(3).
Is there a need of customary laws related to diplomatic immunity?
India in 1965 approved, Vienna Convention on Diplomatic Relations, 1961 [3] which codified the practicing law of diplomatic relations which had developed the relations, consisting the scope of diplomatic immunity. Anciently, there had been number of theoretical aspects and justifications which had been presented as a support of the doctrine of diplomatic immunity. The preamble of Vienna Convention states that the reasoning behind diplomatic immunity can be substantiate with the theory of functional necessity that means that the diplomats must have immunities and privileges so that they can do their prescribed duties in most effective manner possible. See Vienna convention.pdf
What is the extent of diplomatic immunity? Is it same for all the diplomats?
In accordance with Vienna Convention on Diplomatic Relation, 1961, the diplomatic privileges and immunities are said to be mentioned by Vienna convention is “inviolable”. The immunity goes to the extent where the diplomat can neither be detained nor arrested also his residence will be having same protection and inviolability as the embassy. If the crime committed is ‘severe crime’ than only thing possible is to be done by the home country. The home country is having the right to waive of the diplomat’s immunity. Also, the home country may prosecute the diplomat.
Now, if we look upon the equality of these diplomatic immunities than it is said that every diplomat have their immunities and privileges depending upon their post or job. It is stated in the Vienna Convention that diplomats will get immunity according to their post in the embassy, international organizations or consular such as the United Nations. Generally a nation, usually in the capital, is only consists of one embassy per foreign country. Diplomats posted in an embassy get immunity, for him as well as his family members.
There are plenty of theories underlining the doctrine of diplomatic immunity in all of them, the most updated ideology can be that an ambassador presents the foreign king/government, the ideology that an embassy indeed is a foreign territory, the idea that privileges are important for the good conduct of foreign relations. The idea behind these theories tells one truth that in the event that one country punishes ambassadors for valid justifications, there is nothing to prevent the other country from doing likewise and representatives would be in danger of turning out to be prisoners/hostages.
IMPACT OF THIS DEVELOPMENT ON RULE OF LAW
There is one unique Indian tradition is the concept of equal protection before the law, or concisely, the “Rule of Law.” Contrary to the moral and legal exceptions of tyrants and monarchs of earlier times, every individual were to be protected equally in person liberty and property, and was equally subjected to the same law. With no exceptions to anyone.
Equal justice and equal rights before the law was the rule, and to ascertain this protective rule, government was having a great role to play. But with government’s violation of our political, economic and private lives now rules much of society. Now the Rule of Law has become seriously threatened or infringed.
Nowadays government, indeed, incorporate many of the serious crimes it was initially embodied to stop and has done so to a degree without being recognized of in the petty tyrannies of earlier years. Even in our early ages, theft, fraud and murder have become excusable in many cases when committed by government officials of ‘social welfare’ and ‘national security’.
If we look upon the doctrine and its meaning we happen to see it as partial and unjust. There are plenty of questions arise regarding the failure of rule of law in this doctrine. Like given below- Why should government officials, diplomats and others have privilege to not follow the principle of the Rule of Law? Why their missions have given them license to harm the innocent and freely get away with liabilities? Is there mission is of so much important? The answer to the questions is never had been given properly. But another thought comes to mind that these diplomats seems to picture themselves as exactly those who should not be in government rather should be put in jails?
Diplomatic immunity, if we see than all together is not such bad of an idea if it only refers to immunity from the locale laws of the state of nation which extends its limit and go beyond to protect the person and property. Although if it is of such a good idea than each nation should extend it to everyone and not merely to government officials of the state.
The reality of the situation is that diplomatic immunity does not, and never has implied such a safeguarding. Rather, it explicitly absolves government figures from duty from criminal acts. Hence, there were so many public disturbance occurred because of this. In Central America, Brazil, and also in Iran, over how American diplomatic personnel literally “got excused of murdering someone” was understandable.
STATUTORY PROVISION IN INDIA
As mentioned above in the article itself, India adopted the Vienna Conventions on diplomatic relations report, 1961 in 1965. It became the law of the land in India and renamed as the diplomatic relation (Vienna Convention) Act, 1972. It consists of 11 articles and one schedule which defines powers and privileges given to a diplomat and also discuss how to deal with the conflicts arising out of diplomatic relations. The schedule talks about the provisions in the Vienna conventions on diplomatic relations, 1961. In the schedule the provision of VCDR, are not modified but are as it is. See (The diplomatic relation.pdf)
There are in total of 192 countries which are signatories to this law. If we look upon the data than almost every country have diplomatic immunities and the practice is still similar to that of the times in 17th century. Art. 5 of the Diplomatic Relations (Vienna Convention) Act, 1972 [4] & Art. 32 of Vienna Conventions on Diplomatic Relations talks about waving of the rights of diplomacy. Also, if there is a question comes that is it an absolute right than that is also not true because Art. 4 of the act talks about restrictions on privileges and immunities by Central government. This was done just to prevent the power turning into abuse. In more concise form it talks about how the application will be made, what will be the extent of privileges, what will lead to the restriction or waiver of privileges and immunities, etc.
CASE STUDIES/LAWS
As mentioned in the article above about how privileges and immunities are not the same for all the diplomats it differs with the position so there have been instances where generally Indian diplomats are getting into trouble. There are some of the cases where immunity has been invoked which are mentioned below:
1) In December 2013, Devyani Khobragade, an appointee delegate general at the Indian office in New York, had been captured and purportedly strip-searched for supposed visa extortion on grounds that she did not respect the duty to pay least wages according to US rules to her household help. Since she was a negotiator in the office, she was represented under the Vienna Convention on Consular Relations which gave her constrained resistance. In any case, the Indian government avoided this standard by moving Khobragade to the Permanent Mission of India to the UN, which has the status of an international embassy. That move gave her immunity as the Permanent Mission is secured by the Vienna Convention on Diplomatic Relations other than other UN rules. She was later moved to Ministry of External Affairs in New Delhi. The issue had swelled into an all out discretionary altercation between the US and India, which fought back by lowering benefits of certain class of US negotiators, among different advances.
2) In June, 2015, India’s high commissioner was sent to New Zealand, Ravi Thapar, was reviewed over claims that his wife had assaulted their chef. Police were denied authorization to meet both Thapar and his wife Sharmila in light of the inviolability they delighted in. He was reviewed to India.
3) In January 2011, the Indian government educated Britain’s Foreign and Commonwealth Office regarding its choice to move senior negotiator Anil Verma to India. Verma had been addressed by Scotland Yard on claims that he had attacked his wife. He also got away from indictment.
4) In May 2003, Mansur Ali, the 24-year-old child of then Senegalese represetative to India Ahmed el Mansour Diop, was blamed for killing his driver Dilwar Singh, yet the Delhi police could not get him for addressing as he had immunity. The represetative and his child after this left India.
5) In 2011, Raymond Davis, a CIA contractual worker in Pakistan, was captured after he shot dead two equipped men on a Lahore road. The US guaranteed resistance since he had been conceded into Pakistan on a diplomatic visa. He was later let off by a Pakistani court after he hacked up ‘blood cash’ to the family members of the men he slaughtered.
ABUSE OF DIPLOMATIC IMMUNITY
As talked about in the Introduction, diplomatic immunity is an essential rule of worldwide relations and it was built up to advance global relations by securing ambassadors ‘from counter in time of international clashes’. However, there have been an expanding number of difficulties to the object and motivation behind the Vienna conventions, as negotiators, their family, and consular authorities have progressively offered meager appreciation for laws and guidelines of the getting states and have every now and again abusing their immunities and benefits, requiring the summon of jurisdiction by the accepting state. Simultaneously, it is similarly evident that on occasion accepting states have dismissed cases of diplomatic immunity on unstable grounds, including the action that such resistance is accessible just for ‘prescribed acts’. It is presented that the maltreatment of benefits and invulnerabilities by ambassadors, just as by the states that get them, comprise one of the significant difficulties to the proceeded with achievement of the Vienna Conventions.
It might be noticed that out of the considerable number of malicious actions of diplomatic immunity, maltreatment of criminal nature merits extraordinary investigation. The violations submitted by them extend extensively from child abuse, drunk-driving, assault, ownership of destructive weapon, pay off, bondage, illegal tax avoidance, and even homicide. In universal urban areas, for example New York, Geneva, London and Washington have been inclined to the event of ‘diplomatic abuse’, given the generally high number of outside consulates and worldwide associations in these spots.
Indeed, this issue is especially intense in the US, taking into account the central command of the UN being situated in that nation. In early times, a large number of people from low-economic nations, particularly women, have entered the US with A-3 and G-5 visas to function as residential workers in the homes of representatives, consular officials, and authorities of worldwide associations. Reports recommend that a considerable lot of these local representatives have been exposed to misuses, for example, retaining of wages, underpayment of wages, abuse, illicit repression, retaining of identification, assault and different types of physical and sexual abuse. It is not remarkable to find that occasionally ambassadors are accused of serious violations, for example, human trafficking and constrained work.
On account of London, the circumstance is the same. In 2004, the UK government had discharged information demonstrating the wrongdoings submitted by political and consular staff posted in the diplomatic post of different nations situated in London. It showed that somewhere in the range of 1999 and 2004, 122 serious offenses were submitted by representatives and different authorities. Be that as it may, the UK government could not arraign the supposed guilty parties taking into account their diplomatic immunity.
Indeed, even late Indian history is loaded with numerous instances of such maltreatment. In 2013, it was accounted for that the Consul General of Bahrain in Mumbai was blamed for attack of a 49-year-elderly person filling in as a director at a private society where the representative likewise dwelled. Despite the fact that he was associated for the wrongdoing with attack, he was not convicted as he delighted in political invulnerability. Additionally, in 2014 the Indian police recorded a criminal argument against specific representatives of Israel for harming an airport official, however no move was made against them. These cases show that remote authorities have a more prominent misjudging about the idea of strategic privileges and immunity.
CONCLUSION
At the end of this article we have now talked about abuse of immunity given to the diplomats, need of diplomatic immunity and many other aspects of diplomacy. The diplomatic immunity if we see than it is needed but with more strict provision. The freedom given to the diplomats is too much to handle at a post. General government officials like ministers and others who are not diplomats and do not have the immunity as well, they also tends to misuse the smallest amount of power. So, a rough conclusion can be made that the laws should have some more restrictions than the existing ones. Also, our constitution follows the principle of rule of law, but diplomatic immunity tends to ignore the whole theory of it. Freedom is necessary for the good conduct of the work assigned but it may also be considered as a waste or boon if practiced in a wrong sense and without the reasonable responsibility.
REFERENCES
• United States v. Enger, 472 F. Supp. 490, 504 (D. N.J. 1978) (citing PLISCHKE, CONDUCT OF AMERICAN DIPLOMACY 3 (3rd ed. 1959). For example, Ramses II of Egypt and the Hittites negotiated a treaty including provisions for the immunity of each nation’s diplomats within the receiving nation. Id.at 504 n 9.
• Enger, 472 F. Supp. at 505.
• GROTIUS, DE JURE BELLI AC PACIS, BOOK II, CHAPTER XVIII.
[1] https://www.britannica.com/topic/diplomatic-immunity#ref795538
[2] https://www.britannica.com/topic/quasi-extra-territorium
[3] https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf
[4] http://legislative.gov.in/sites/default/files/A1972-43.pdf