Diplomatic ImmunityINTRODUCTIONUnited Kingdom, 1982While unloading the ship which carried the embassy’s materials, one box marked”household effects” dropped from a forklift. More than six hundred pounds ofmarijuana worth 500,000 British pounds (1982 prices) spilled dockside.
For centuries governments have used ambassadors, and diplomats to representtheir nation. These special envoys have done everything from resolving years ofconflict, deciding on how much humanitarian relief will be sent to a nation, orjust being present at diplomatic dinners and ceremonies. These people have beenthe vital link between nations, and they have enjoyed complete immunity from thelaw of the host nation. Originally this immunity was extended as a courtesy toallow for an uneventful stay in the host country. While in a foreign country onofficial business, the diplomat would be granted exemption from arrest ordetention by local authorities; their actions not subject to civil or criminallaw.
For the longest time this privilege produced little or no incidents. However, this unique position of freedom that diplomats, their family, and staffhave been graced with has not been so ideal. Recently the occurrences of abusefor personal or national gain has grown out of proportion. What once protectedthe diplomat and his staff from parking tickets and some differing social laws,now grants them protection under the law to commit crimes such as drugtrafficking, kidnapping, rape, and murder.
Even though serious crimes are rareand punishable to various extents in most countries, domestic authorities wereforced to look the other way. While it would be convenient to believe that thesix hundred pounds of marijuana was sent for personal consumption at the embassy,it is evident a small drug trafficking ring was being protected under the guiseof diplomatic immunity. HISTORY/DESCRIPTIONThe international community has tried to develop a universally accepted set ofnorms governing the conduct and privileges of diplomats abroad. These fewArticles from the convention show the good faith of the convention:Article 29: Diplomats are inviolable; exempt from any arrest/detention. Article 31: Diplomats are exempt from criminal jurisdiction, they can be triedonly if immunity is waived. Article 32: Only the sending country can waive immunityArticle 41: Diplomats should still respect the laws and regulations of the hoststate.
Baring few changes, the 1961 Vienna Convention on Diplomatic Relations remainsthe basis for interaction between states. This convention tackles the problem bydividing the privileges of immunity into four classes. The diplomat and hisfamily enjoy “complete” immunity. They cannot be arrested, detained or taxed.
They do not fall into the realm of jurisdiction of the host country. Furtherthey cannot be asked to stand trial or submit to having their possessionssearched. The diplomatic staff are granted these same rights while performingofficial diplomatic business. Private servants have only been granted immunityfrom taxation. The privilege of complete immunity allows for the use of the”diplomatic pouch”.
This not an actual pouch, rather it is the power to declareany belongings off limits. The crate being removed from the ship (above story)was considered diplomatic pouch. The introduction of the term “diplomatic pouch”; brings us to one of the majorproblems with the standards regarding conduct of diplomats. Originally theconcept of diplomatic pouch was used to permit secrecy on official visits byforeign staff. This policy of ultimate secrecy becomes important when diplomatsare venturing into unfriendly territory.
Further, an explicit trust is grantedto the diplomats to allow for free communication between the diplomat and theirsending country. However this gracious offer of trust allows for easy abuse. ABritish foreign affairs committee declared, “The only way, in fact, to find outif diplomatic bags contain prohibited items would be to drop them whileunloading them from the aircraft and hope that they would split open” (“FirstReport of the Foreign Affairs Committee of the House of Commons,” p. 617). Smuggling of drugs, weapons, and priceless artwork are all to common.
In thesecases, abuse of the diplomatic pouch is obvious, yet in some instances thesending country is also involved. Once a diplomat is accused of a crime in thehost country the only means possible to bring the diplomat to justice is to havethe sending country waive the diplomat’s immunity. In most cases the sendingcountry wishes to protect its reputation and ultimately the reputation of thediplomat, therefore refusing to give up immunity. The question of rescinding immunity brings up the second major aspect of thistopic. When a crime is committed what options do the two countries have to solvethe problem? The first option is to have the sending country waive thediplomat’s immunity, allowing the diplomat to be punished for the crimescommitted in accordance with the laws of the host nation. While this is apreferable solution, it is not very common as explained earlier.
Anothersolution is to declare the diplomat in question “persona non grata”(unacceptable). This forces the sending nation to recall the diplomat or removethe diplomat from the post all together. The third solution is the completesevering of all diplomatic ties. The latter two solutions present many problems. Rejection of a diplomatic mission produces unwanted tension between nations andjeopardizes current progress.
Many times the crime goes unpunished. Something must be said for the diplomats doing their job every day and makingthis world a little safer to live in. Most diplomats are courteous law abidingcitizens of the sending country. Out of respect for the host country and toprotect the integrity of the mission most diplomats follow the laws and socialgraces of the host nation. However the Vienna Convention allows for anincredible amount of personal liberties, which can be easily abused.
There are a myriad of problems with diplomatic immunity. However all of thesolutions fall into the category of international relations. When crimes of anindividual are compared with interactions between two or more nation states, thealleged individual crimes become less important. Nonethess, it is the truth andreality therefore we must deal with it accordingly.
There have been manyexplanations supporting the need of diplomatic immunity. The many ideas can bereduced to three ideas. The first dates back many centuries. The diplomat wasconsidered an arm of the government represented.
Thus an insult to the diplomatwas an insult to the sending ruler. The second idea is one ofextraterritoriality. In short the diplomat never officially leaves the sendingcountry. Just as embassies are considered territories of the countries therepresent, the diplomat would remain within jurisdiction of the sending countrywhile in the host country. The third idea and the by far the most popularexplanation is one of :functional necessity. ” The privilege of diplomaticimmunity is argued to be necessary component of the diplomatic mission.
Debatecontinues on the extent of this immunity, yet the agreement continues on theidea that nothing should impede the promotion of peace. However as of 1977,$5,000,000. 00 in uncollected parking tickets are attributed to UN officials inNew York City. Another example occurred in July of 1984. Customs officials in Rome werechecking bags when they heard moans coming from one of the bags. The bag wasmarked “diplomatic bag” and belonged to the foreign minister in Cairo.
When thebag was opened a drugged Israeli was found inside. The bag was evidently usedoften. It was lined in leather and had a chair fitted to the bottom. There washelmet for the persons head and various straps to contain the person properly. The Israeli was released and nothing was done.
North Koreans were caught smuggling marijuana in Oslo, Helsinki, and Copenhagenin 1976. Earlier officials had been detected carrying 400 kilos of hashish intoCairo. In all of these occurrences nothing could be done because of diplomaticimmunity. The abuses of immunity are becoming increasingly worse. While functionalnecessity is a valid argument, a solution to the problem is needed.
CURRENT STATUSThe current status of diplomatic immunity has been constant since the originaldraft of the Vienna Convention in 1961. On the twenty-fifth anniversary of theVienna Convention, the Legal Committee of the General Assembly reported thatthey were satisfied with the convention as it stood (A/RES/41/79). In 1989 theLegal Committee decided to examine the courier and his status. Experts werebrought in at the next session to informally discuss the individual clauses andanswer questions. Again the final response was that everything was acceptable(A/RES/45/43). The closest the United Nations has come to re-examining theentire convention was in 1985, when a opinion was drafted explaining thetechnicalities.
(A/CN. 4/SER. A/1985/Add. 1( Part 2)) The United Nations hasrecognized the problem, but there currently remains no solution. Solutions have been formally discussed yet no amicable resolution has beenproduced. Two ideas that have been discussed are based on the idea of insurance.
The first theory proposes that a diplomat and the staff must buy an insurancepolicy. The second theory proposes a claims fund. Both theories allow countriesto have a way to remunerate those who have suffered from criminal acts but itstill does not insure the bringing to justice of the alleged perpatrator. The most popular idea is the creation of a permanent international diplomaticcourt. Ideally the alleged would be brought to answer for the crime in front ofhis peers. However a myriad of problems arise.
First, you must be able to bringthe accused to the court to answer for the crime. Second, you must form a jurycomposed of enough countries to prevent a bias. Third you must account for adrastic difference in the underlying fabric of each countries values. Fourth andprobably the hardest problem to deal with is the maintenance of theinfrastructure needed to support this international court. Or in short who isgoing to pay for it? The United States has tried to change the situation at home.
In 1987 the Senate passed a resolution making it a felony for anyone with adiplomatic immunity to use a firearm to commit a felony, with the exception ofself-defense. Nonetheless, a solution should be produced by the wholeinternational community. COMMITTEE MISSIONYour mission is to solve some of the problems that diplomatic immunity haspresented. As you know you must gather a majority to pass the resolution, so Iwill pass on a few tips and some questions you should consider. You mustremember that sovereignty is basis for the United Nations. Therefore noresolution can violate the sovereignty of a nation.
All resolutions shouldaspire to solve the problem and attempt to please all the parties directly andindirectly involved with the problem.History