Diplomatic Immunity Thesis Statement

Introduction

Abuse of diplomatic immunities puts a threat to the principles of immunity and inviolability regarding the Vienna Convention on Diplomatic Relations[1]. Abuses occur in various forms. Diplomatic abuse can be observed when a diplomat smuggles illegal items in diplomatic bags, commits driving offences or works under the cover of a spy. In other cases, diplomatic personnel can be the target for organised terrorism, such as it was the case of the kidnapping and murder of US Ambassador Dubs on February 14, 1979 in Kabul[2]. The actual victim of diplomatic abuse is not only the ambassador, but with respect to the Vienna Convention, it is rather the sending State or the international community of states. This is because, as the diplomat performs its functions as a representative on behalf of the sending State, the state behind is the object of abuse[3]. Abuse of diplomatic immunity is also in the concern of the international community of states because any abuse influences the universal, world-wide accepted validity of diplomatic immunities and privileges formed by the long-practised rules of custom[4]. The Vienna Convention puts a balance between the interests of the sending State and the receiving State. The sending State aims to pursue its "foreign policy interests"[5]through its representatives within the territory and under the consent of the receiving State[6]. The system of immunity established in different norms of the Vienna Convention provides a sound framework to protect the performance of diplomatic functions "in security and confidentiality"[7]. States have already taken appropriate countermeasures to gain control over abuse of diplomatic immunities, either by using countermeasures set forth in the Vienna Convention or by establishing international regulations or national provisions. Defining diplomatic abuse remains difficult, but the term can be described as any temporary conduct or effort of a person or political group to exercise functions for its own purposes that penetrates diplomatic immunities under the Vienna Convention.

In this essay, I shall firstly give some examples that illustrate forms of abuse of immunities and explain why diplomatic immunities are infringed.

I will also name the main reasons why diplomatic immunities become the target of increasing abuse. Finally, I will refer to the countermeasures that can be taken by the victim, before I shall find an answer to what factors influence the countermeasures.

Forms of Abuse of Diplomatic Immunities

Diplomatic immunity is abused in different forms. Three examples will be given to answer how immunities of diplomats are abused. The first incident took place in London on February 24, 1985, where British police arrested a man because he was suspected of having heroin in possession. The police began to search his apartment for drugs. After the suspected had claimed to be a diplomat of the Zambian mission enjoying full immunity, the police stopped the measure when they found his diplomatic identity as being correct[8]. In this case, the diplomat, a third secretary of the Zambian embassy, used his diplomatic immunity to smuggle and/or consume drugs. His immunity from criminal jurisdiction pursuant to Art. 31(1) of the Vienna Convention protected him from further criminal prosecution and punishment in the host state. But the diplomatic envoy abused his diplomatic privileges because he broke his obligation set forth in Art. 41(1) of the Vienna Convention that establishes "the duty" of all diplomatic persons "to respect the laws and regulations of the receiving State". The scope of this provision describes that the diplomat shall respect the national laws of the host state.

The second example refers to espionage. The incident occurred in Peking on August 2, 1995, where two US Air Force officers were expelled from China. The Chinese Foreign Ministry justified the expulsion because the officers had visited the American embassy in Peking to spy upon Chinese military facilities and "acquired military intelligence by photographing and videotaping". Afterwards, the Chinese Foreign Minister and the Department of State established talks in order "to rescue the relationship"[9]. In this case, the officers operated under the cover of a diplomat and for that reason, they enjoyed diplomatic immunity from criminal authority in the accredited state. Because of the discovery of the espionage activities, the Chinese government expelled the military officers[10]. In this example, the abuse of immunity is taken because the intelligence agents interfered in Chinese restricted military areas.

However, the interference in internal matters violates the principle of non-interference expressed in Art. 41 (1)(2) of the Vienna Convention because it is the diplomat's duty "not to interfere" in internal matters of the host state. The other incident occurred on November 4, 1979, where armed students entered the premises of the US embassy in Tehran and captured the whole diplomatic staff as hostages. The students sought to coerce the US government to extradite the Iranian Shah and to "apologise for its involvement in internal Iranian political affairs for the previous decades"[11]. The US government responded that it would not fulfil their demands[12]. The Iranian government did not intervene in the conflict to protect the US embassy and diplomatic envoy. This case differs in so far from the other examples given as the target of abuse had been the US embassy and its ambassadors by the armed occupation of students. When they entered the embassy, and kept the diplomats as hostages, they infringed the principle of inviolability of diplomatic staff and diplomatic premises protected under Art. 29(1) and 22(1)(1) of the Vienna Convention. The principle of inviolability established in several provisions[13] serves to enable and protect diplomatic functions set forth in Art. 3 of the Vienna Convention. Representing the sending State, negotiating with the government of the host state, and promoting their interests by diplomats can only be granted, if diplomatic tasks are protected against any interference. Therefore, the principle of inviolability establishes a basic framework for diplomatic communication in independence and freedom. The interaction between diplomatic immunity and diplomatic functions is considerably damaged in the latter one because the Iranian students used violence against the diplomatic staff to enforce their own political demands.

McClanahan observes an increasing spread of abuse by state-sponsored terrorism[14]that particularly threatens ambassadors in the Middle-East[15]. The fact that the Iranian government did nothing against the seizure of the US embassy in Tehran, which was against its obligation under Art. 44 of the Vienna Convention to protect diplomats and their premises, supports the assumption that the Iranian government was involved to a certain degree in the terrorists' action. What have these three examples in common? The abuse of diplomatic immunities often takes place where the diplomat or other persons without having a diplomatic status intend to pursue certain purposes that are not covered by the Vienna Convention, seeking to change political circumstances by committing crimes and using violence. This is because the purposes and function performed by those people are beyond the diplomatic function. Purposes can base upon selfish, political, or religious interests[16]. However, these individual purposes are incompatible with the purpose established in the preamble of the Vienna Convention, seeking "not to benefit individuals", but to "ensure the efficient performance of the (diplomatic) functions". Any attempt to pursue purposes that are beyond diplomatic functions would thus undermine the principles of immunities.

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[1]Vienna Convention on Diplomatic Relations, done at Vienna on April 18, 1961, and entered into force on April 24, 1964, published in: UNTS, vol. 500, pp. 95ff. [hereinafter: Vienna Convention].

[2]For further details, see Taylor, in: Sullivan (1995), pp. 55-69.

[3]Stohl, in: Kegley (1990), p. 83, wants to distinguish between the "victim of the violent act from the targets (the audience of that violence)".

[4]See McClanahan (1989), p. 44 and Brownlie (1990), pp. 346-347.

[5]See Higgins (1985), p. 641.

[6]Compare, e.g, Art. 2 of the Vienna Convention; see also Brownlie (1990), p. 322.

[7]Higgins (1985), p. 641; McClanahan (1989), p. 184.

[8]Example taken from McClanahan (1989), p. 156.

[9]Example and quotations taken from Fletcher's article in: The Times on Aug. 3, 1995, p. 11.

[10]McClanahan (1989), pp. 161-163, emphasises that the receiving State can, declare spies, making use of diplomatic immunities, persona non-grata pursuant to Art. 9 of the Vienna Convention. In fact, the declaration of persona non-grata terminates the diplomatic status (see Art. 43(b) of the Vienna Convention) and is a reason for expulsion.

[11]Example and quotation taken from McClanahan (1989), p. 8.

[12]Compare, e.g., Stohl, in: Kegley (1990), pp. 82-83, stating that the terrorism act performed by the Iranian students during the seizure of the US embassy gives a good example to influence a greater audience: they "originally intended only to hold the staff hostage" for a few days, but "as time progressed, they realised they could achieve much greater results and manipulate the United States government, media, and public".

[13]See, e.g., Art. 23, 29, 31, 32, 33, 34, 35, 37 of the Vienna Convention.

[14]Sick, in: Kegley (1990), p. 53, defines terrorism as "the deliberate and systematic use or threat of violence to coerce changes in political behavior".

[15]See McClanahan (1989), pp. 159-161.

[16]See also Art. 42 of the Vienna Convention that seeks to exclude any diplomatic practice in the receiving State "for personal profit".

I write, speak, and testify periodically about the reciprocal importance for the United States and U.S. officials of various forms of immunity under international law: head of state immunity, foreign sovereign immunity, official acts immunity, and diplomatic immunity.   Here is the text of a short op-ed I have in today's New York Times "Room for Debate" section entitled "It's Vital for Americans Abroad" arguing why it would be dangerous for American diplomats to create exceptions to diplomatic immunity in order to allow foreign diplomats to be prosecuted or sued in the United States.    When considering possible exceptions to immunities for foreign governments and foreign officials, we must also consider the reciprocal consequences.

The Vienna Convention on Diplomatic Relations, a treaty to which almost every country in the world is a party, provides that diplomats enjoy immunity from arrest, criminal prosecution and civil lawsuits in the countries where they are posted. Diplomatic immunity is vital to protect the more than 15,000 American diplomats serving in over 150 countries from political and legal harassment. If American diplomats did not have immunity, they would be at constant risk of detention and prosecution on trumped-up charges, especially in countries where the United States is unpopular or where the government bows to popular pressure.

Foreign diplomats and certain representatives of international organizations serving in the U.S. also enjoy immunity. Unfortunately, this means that if they commit crimes like driving while drunk or abusing household workers, they have immunity from prosecution or lawsuits in U.S. courts. But the federal government is not totally without recourse. For serious crimes, the State Department may press the foreign government to waive immunity, and in some cases the foreign government may be willing to do so. If the foreign government refuses, then the State Department may ask the government to recall the diplomat, or may expel the diplomat from the U.S.

In recent years, the U.S. government has become increasingly concerned by the abuse of domestic workers by foreign diplomats. In December 2008, President George W. Bush signed legislation requiring diplomats to sign contracts specifying the employment conditions for domestic workers and the State Department to suspend the issuance of special visas for domestic workers for any country that had tolerated such abuse.

The U.S. government must not ignore abuse of domestic workers or other offenses committed by foreign diplomats in the U.S. but it would be a mistake to create exceptions to diplomatic immunity. This would greatly endanger U.S. diplomats who serve around the world.

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