THE PRINCIPLES OF DIPLOMATIC IMMUNITY IN INTERNATIONAL LAW: THE CASE OF ITS APPLICATION IN CAMEROON
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Immunity is a legal privilege attributed to certain persons (State officials) and recognized by national and international law which enables them to exercise their functions free from outside constraints or pressures, including legal ones. This study was aimed at examining the application of the principles of diplomatic immunity in Cameroon. Specifically the study sought to examine the applicability of diplomatic immunity by Cameroon government as outlined in the Vienna convention; to investigate the cases of diplomatic abuse of immunity by diplomatic agents in Cameroon; to assess the challenges of waiving and regulating the abuse of diplomatic immunity in Cameroon. The research design adopted for this study was the quantitative design with the use of survey research method. Cameroon government ensures the timely and safe departure of the diplomats, in case of armed conflict. The findings revealed that Cameroon ensures the freedom and dignity of all diplomats, Cameroon ensures that Restraining orders are not being issued to diplomats, Cameroon ensures that diplomats are not judged in Cameroonian courts and Cameroon governments gives maximum respect to all diplomats. The study found out that the abuse of immunities and privileges by the diplomats and their families is one of the main challenges faced by the Vienna Convention. The use of illegal products by diplomats and their families is also a great challenge
Historically, the roots of diplomatic immunities go back to the ancient civilizations in varying degrees in Ancient Greece, Rome, India, China, and Persia. The origin of the privileges and immunities themselves, however, goes back to 1500 BC. In the beginning, the institution of diplomatic immunities existed in antiquity. In Ancient Chinese, Greek and Indian states, the personality of the ambassadors was considered inviolable. In Ancient India, the ambassadorial premises also enjoyed the diplomatic immunities. At that period of time, this was because of religious beliefs, and later on, international customs. In these states, there was a strong conviction that it is impossible to ensure peaceful international relations and interaction with each other on various issues without granting the right to foreign ambassadors and intermediaries to move safely across the territories of host states. At the same time, the principle of the ambassadors’ personal immunity lost its former meaning during the heyday of the Roman Empire, and later on, of Byzantium. Both of the states relied more on aggressive politics rather than peaceful co-existence; the necessity of the unifying beginning, which could be the basis for the diplomatic privileges, was crucially felt. (Neilson, K., & Colwill, E. 2001).
In the Ancient Rome, there was a principle of ‘ne impediatur legatio’, which meant the immunity of the legate (Zappala, 2001). In the middle ages, the idea of the priority of the pope or the emperor over the other sovereigns was the basis not only in terms of the ceremonial honors which were granted to the ambassadors, but also the rules regarding communication which later on spread to ambassadors, crowned sovereigns, and their states. Furthermore, lots of authors of the ancient and middle age times, such as Titus Livy and Cato the Elder, substantiated the inviolability of the ambassadors and respectful treatment to them. Understanding the importance of them to support the peace and friendly relationships between sovereigns and nations. The feature of the diplomatic act during the feudalist epoch was the privilege over the blocks; the city blocks were removed from the state jurisdiction in the favor of the foreign ambassadors. However, it was in states where the local power was not strong enough and states inclined to the frequent distempers (Frey & Frey, 1999).
In its modern sense, diplomacy revived only at the culmination of the Middle Ages, particularly at the dawn of the Renaissance. With the emergence of the permanent Ambassadorial Institutions in the 15th century, the principle of the inviolability of their quarters was strengthened. Taking into account the special role of the church during this historical period, the ambassadors, continuing to make use of their inviolability, began to be considered under special protection (Frey & Frey, 1999). The 16th century was a period of violent religious strife; the practice of the states included special protection and immunity from the criminal jurisdiction of ambassadors, including even those suspected of conspiracy against the sovereigns who accredited them. In this context, it is appropriate to refer to the diplomatic incident in 1584: the Spanish Ambassador, Bernadino de Mendoza, was accused by the British government of plotting to overthrow Queen Elizabeth, which rose the question as to whether it is possible to judge the Spanish Ambassador in English courts. The Queen’s Council asked renowned Italian diplomat, lawyer and expert in diplomatic law, Alberico Gentili, for his council regarding this issue. He gave the conclusion that Mendoza should be punished by the Spanish sovereign, and therefore must be expelled from England. As a result, the guilty Ambassador received the order from the British authorities to leave the Kingdom (Frey & Frey, 1999).
During the Westphalian (1648-1815) period of the development of international law, the final fixation in the form of the international custom was received. Hence, by these laws, rules on the Ambassadors’ immunities, their accompanying family members, and the personnel from the civil and criminal jurisdiction of the host States were define, as were the rules on the inviolability of the Embassy premises. During this period, special attention was paid to diplomatic immunities in scientific international legal developments. Formally, England recognized the notion of diplomatic immunities in the early 1700s, followed by the absolute immunity recognition by the United States in 1790 (Frey & Frey)
Diplomatic immunity in international law is the freedom from a countries jurisdiction or coercive power granted to certain persons due to customary international law and/or through treaties. Diplomatic personnel have immunity for actions taken before both in and out of service, while consular staff only has the former. Different degrees of immunity also apply to other categories, such as officials of international organizations. Another side of immunity is integrity, which means protection from forced interventions and include personal, like diplomats, or property, like embassy building or archives. Even foreign enemy warships are in principle inviolable. Preventive measures should in principle be taken. Police receive like prevent a drunken diplomat from continued driving. Flagrant abuse may waive immunity, which incidentally does not preclude prosecution in their home countries. The privileged are nevertheless obliged to observe and comply with the residence country’s laws (National encyklopedin, 2013) .
Immunity is a legal privilege attributed to certain persons (State officials) and recognized by national and international law which enables them to exercise their functions free from outside constraints or pressures, including legal ones. At the international level, immunity is a tool that protects the sovereignty and independence of States by preventing them or their agents from being prosecuted before foreign courts. Individuals entitled to immunity from jurisdiction can thus avoid legal pursuit before national or international courts. This immunity exists mainly for diplomats, United Nations personnel, and parliamentarians, as well as government members and heads of State or of government. Immunity has been laid down in customary international law and several international conventions.
Immunity is never absolute and is generally restricted to acts committed in the exercise of official functions, during the time the person holds that official position. It is generally accepted that there are two types of immunities (under both national and international law):
Personal immunities, attached to the persons because of their stature which cover all acts performed by those who benefit from the immunity and last while the persons concerned remain in office. Immunity may be lifted in the case of grave violations by the political or legal entities that control the various official functions.
Immunity cannot be claimed in the case of prosecutions before the International Criminal Court, in virtue of specific provisions of its Statute (Art. 27.2 of the ICC Statute). However, immunity of jurisdiction for the State and its agents concerning prosecutions before foreign courts remains an absolute principle in customary international law. This principle was recognized in several decisions by the International Court of Justice. The ICJ recalled that this immunity could not be assimilated to impunity because immunity was a procedural guarantee limited in time. Immunity can postpone the application of criminal responsibility, but it does not erase it (infra Jurisprudence).
There is limited immunity granted to Cameroonian parliamentarians, members of some diplomatic missions in Cameroon because there cases of violations of their immunity. In Cameroon therefore, immunity has become impunity
How are principles of Diplomatic Immunity applied in Cameroon
Are there any cases of abuse of diplomatic immunity by diplomatic agents in Cameroon?
What are the challenges of waiving and regulating the abuse of diplomatic immunity in Cameroon?