AN APPRAISAL OF DIPLOMATIC IMMUNITY IN INTERNATIONAL LAW

ABSTRACT

This research addresses the concept of diplomatic immunity under international law. Firstly, the work illustrate the concept of diplomatic immunity, providing its historical outset and information of modern codification of diplomatic immunity’s rules and principles. Secondly, the work deals with the legal status of consulates by addressing the inviolability of diplomatic premises.

Also, the research analyses personal immunity of diplomats and consuls , the article discusses the immunity of international organizations ,  their officials privivelges and immunities analyses cases in U.S. legal system, and codification of international law in this sphere

CHAPTER ONE

GENERAL INTRODUCTION

1.1 BACKGROUND OF THE STUDY.

Diplomatic immunity is a principle of international law by which certain foreign government officials are not subject to the jurisdiction of local court and other authorities. Today, immunity protects the channels of diplomatic communication exempting diplomats from local jurisdiction so that they can perform their duties with freedom, independence, and security. Under the concept of reciprocity, diplomats, assigned to any country in the world benefits equally from diplomatic immunity. The rules of diplomatic law enshrined in the Vienna convention have been described as “the cornerstone of the modern international legal order”.[1]

But the principle of diplomatic immunity dates back far further than 1961.It is one of the oldest rules of international law. Diplomatic immunity was well established by the end of the seventeen century, evolving out of the principle of equity of states and immunity of the sovereign, who was said to embody the state. As Satow putit, “immunity…is not a personal immunity but in reality the immunity of the sending state” Satow , 1979.[2] As Hazel Fox described in her authoritative text on state immunity, diplomatic immunity is given;

¡)  as recognition of the sovereign independent status of the sending state and of the public nature of the acts which render them not subject to the jurisdiction of the receiving state  and

1. ii) As protection to the diplomatic mission and staff to ensure their efficient performance of functions free from interference from the receiving state.[3]

The concept of diplomatic immunity from civil and criminal proceedings has established itself as a fundamental of customary diplomatic law. It is one of international laws most successful and enduring rules, with 185 states currently recognizing the rules of diplomacy as started in the Vienna convention of 1961. Under the convention,  diplomats are not subject to arrest of detainment (Article 29).They are immune from the criminal jurisdiction of the receiving state(article 31 ):and immune from civil jurisdiction for acts committed within their official capacity (article 31)

 The family of the diplomats agent enjoys the same immunity status(article 37).[4]

Mission staff also enjoy variable levels of immunity(article 37)

In July 2012, Venezuela ambassador of Kenya Gerardo Carillo Silva was accused of sextuall  impropriety and harassment to a junior staff. In their complain, the staff claimed the diplomat had acted indecently towards them on diverse dates and some had been forced to quit their employment after failing to withstand the offending overture. . A watchman from the Securex company  who has been guarding the diplomat’s home claimed the ambassador had acted indecently towards him on diverse dates forcing him to quit.The diplomat’s driver confessed in his statement to the police that he too had fallen prey to the ambassador’s overtures. A long serving cook said he was surprised to see the diplomat stark naked in the kitchen on the morning of last December 8. The incident took place at about 6am when the cook arrived to start his day of work at the ambassador’s residence. His driver told the police on April 29, that the diplomat attempted to grab him sexually last December at the residence but he managed to get away. However, since silva enjoyed diplomatic immunities, he could not be prosecuted under international law and he was later recalled without facing any charges.[5]

Still in Kenya,in May 2011, a Nigerian ambassador to Kenya Dr.Chijioke Wilcox Wigwe, was accused of assault, battery and cannibalism(practice of eating the flesh of one’s own species) on his wife but faced no charges in Kenya because, before the application to waiver, his immunities could be processed,he had already been recalled back to Nigeria.(daily champion, may 2011).

In November 1982, a 23 year old student shot and seriously wounded a night bouncer in Washington DC When identified as the son of the Brazilian  ambassador he was immediately realise and left the US. The Brazilian student was charge with assault once before but charges were dropped and he was allowed to remain in Washington on the grounds of diplomatic immunity. 

In 1981, a man linked to at least 15 rape cases at knife point in the New York city   area was arrested and positively identified by two(2) victims. He was then released because he was the son of Ghana’s ambassador to the United Nations. The man spent 45minutes in custody and was reported as leaving the police station laughing.[6]

1.2 STATEMENT OF THE PROBLEM

The fundamental principle of international law is that members of diplomatic missions are shielded from legal proceedings. A common misconception is that diplomatic privileges and immunities confer a license to commit wrongs.[7]

 This has led to diplomats, their families, personal servants, and staff abuse this privileges to escape prosecution for a variety of offenses ranging from minor traffic violations to the heinous criminal acts,such as Child abuse or murder. Diplomatic immunity also permits diplomats to escape civil liability in personal injury actions.

Everyday practice indicates that both states and diplomatic agents still have problems with interpreting the relevant provisions of the Vienna convention on diplomatic immunity. 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, their abuse inviolability and immunity. Such abuses may still be tolerable by the receiving state in the name of securing effective performance of diplomatic function, if these abuses involve merely minor offenses or crimes.

But do receiving state 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 approach adopted by the Vienna convention on diplomatic relations of 1961,fails to take cognizance of elementary interest of the receiving state and individuals values which might be put into jeopardy if diplomatic privileges for example, the inviolability of diplomatic premises,are conceived as precluding even measures against acts which aims at the safety of the receiving state or threaten human life. It seems hardly acceptable that in extreme situation the receiving state is left with the option either to grant protection to individuals or,even more dramatically, to ensure its own self-preservation, or comply with international law.[8]

The present article intends to address such issues by examining possible solutions to these problems and possible remedies.

1.3   RESEARCH QUESTIONS

GENERAL RESEARCH QUESTIONS

• What is the legal regime of the protection of diplomats in International law?

                               OR 

• What is the legal regime of diplomatic immunity in International law?

SPECIFIC RESEARCH QUESTIONS.

• What is the concept of diplomatic immunity?

• What is the regime of protection put in place to govern diplomatic immunity?

• What are the privileges and immunities enjoy by diplomats?

• What are some of the challenges faced by international diplomats?.

1.4 OBJECTIVES OF THE STUDY

1.4.1  General Objectives

• Examine the law governing international diplomats?

• What are the methods used to protect diplomats?

1.4.2 Specific Objective

• Examine the difficulties faced by international diplomat
• To purpose possible solutions to international diplomatic immunity