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The Dilemma of Diplomatic Immunity: International Relations vs. Human Rights


Introduction


Diplomatic Immunity has been observed in multiple historical communities well before it was codified. It can be generally defined as a practice of customary international law that serves to protect representatives of a state in the discharge of their duties on a diplomatic mission to foster international relationships. This article argues that the present framework of diplomatic immunity enshrined in the Vienna Convention on Diplomatic Relations, 1961 (“Vienna Convention”) has led to international relations being prioritised over human rights, necessitating a more balanced approach with a focus on grave offences.

 

Developments in Diplomatic Immunity


Efforts to codify the principle of diplomatic immunity were taken up as over time customary practices that governed immunity evolved into established rights, prompting a legal inquiry into its validity. Currently, it has been codified under the Vienna Convention which, in spirit, aims to effectuate the purposes and aims of the Charter of the United Nations to uphold friendly relations between nation states and maintain international peace.

 

The Vienna Convention and the earlier customary practices find their roots in 3 different schools of thought that argue in favour of preserving diplomatic immunity based on different considerations. First, the Theory of Extraterritoriality places the diplomat within the territorial jurisdiction of their original nation state (the sending state), effectively precluding the state that is hosting them (the receiving state) from imposing any liability. This theory is critiqued for being overly vast because it fails to explain the inaction of the sending state when law is violated. Second, the Theory of Representation treats a diplomat as a representative of a foreign state, afforded the same privileges as the sovereign. This theory has lost its legitimacy with the decline of monarchy in most states. Third, the Theory of Functional Necessity limits the scope of the immunities granted to that necessary only for efficient discharge of official duties. This theory is also enshrined in the Vienna Convention.  It differs from the previous two as it offers a logical foundation for placing limitations on diplomatic immunity. However, in its application the theory still fails to restrict the scope of diplomatic immunity to exclude diplomats’ personal actions

 

While in theory, functional necessity seems to be a reasonable justification but, as observed in practice, it is impeded by extraneous considerations. Hence, for diplomatic immunity to be truly within reasonable bounds, it must follow the limitations placed upon it by the theory of functional necessity.

 

The Tipping Scales of Diplomatic Immunity

 

There seems to be a clear bias towards the state's interest in maintaining diplomatic international relationships rather than protecting individual human rights. It was held in Empson v. Smith that “it is elementary law that diplomatic immunity is not immunity from legal liability, but immunity from suit”.  This indicates that one should still be able to implicate diplomatic agents as the immunity only seems to be a procedural obstacle that can be remedied once jurisdiction is established. Essentially, the diplomats should not be above the law but, in effect, with the physical privilege of inviolability provided under Article 29 of the Convention and procedural bars, it becomes impossible to impose liability due to lack of jurisdiction. Establishing jurisdiction is particularly difficult in criminal cases for which diplomatic immunity is absolute, unlike in civil cases as provided in Article 31. This leaves a victim no scope for remedy, even in grave criminal cases, and their human rights are sacrificed in favour of inter-state relationships.

 

This is apparent in the Majed Hassan Ashoor case wherein a Saudi Arabian diplomat was accused of forcibly detaining, physically assaulting, and subjecting two Nepali women to recurring sexual assault perpetrated by groups of up to eight men at a time. Following the discovery of the human rights violation committed, the accused exited India under the umbrella of diplomatic immunity. These allegations were investigated by police and further substantiated by medical examinations of the aggrieved women. However, India was unable to interrogate the accused prior to his departure to Saudi Arabia.

 

The Saudi Arabian embassy refuted these allegations and condemned the search of the apartment undertaken by the police citing a violation of diplomatic privileges and the Vienna Convention. The Indian Ministry requested cooperation from the Saudi Arabian government to interrogate and further take actions against the accused, however these requests were denied and provisions of International Law provided no aid. The intervention of the Indian National Security Advisor and a possible diplomatic bargain between India and Saudi Arabia also allowed the accused to exit the country virtually unhindered. Mr. Ashoor’s actions were claimed to be protected under the Vienna Convention and hence given full immunity against any criminal investigation and liability, leaving the victims no recourse for the human rights violations they faced.

 

This liability, as discussed beforehand, might impede the efficient functioning of the diplomat; however this argument should be measured against the gravity of the offences committed by the diplomat which the Vienna Convention fails to do.

 

A possible safeguard to aid in addressing grave violations of human rights stems from the theory of functional necessity. This can be traced from Article 3 of the convention which delineates the functions of a diplomatic agent in the receiving state.  While the convention provides the functions of an agent, jurisprudence so far has taken diplomatic immunity to be absolute rather than read harmoniously with Article 3.

 

A possible explanation of this dissonance is external political factors. This has been a factor even considering the remedies provided under the Vienna Convention and how they have been invoked. Recourses like waiver of immunity to allow for persecution or breaking diplomatic ties although available are usually not availed to preserve the diplomatic relationships. In most cases, the diplomatic agent is called back to the sending state and remains effectively above the law leaving the victims without any legal remedies for their human rights violations.

 

Possible Solutions

 

The importance of international diplomatic relationships precludes the abolition of diplomatic immunity, however, certain safeguards are necessary to prevent its misuse. Particularly in the case of grave offences leading to human rights violations, bilateral agreements and the establishment of an International Diplomatic Disputes Criminal Justice Court could serve as a solution in lieu of elaborate procedural and bureaucratic requirements.

 

Bilateral agreements between the sending and receiving states would offer an alternative avenue for states willing to restrict the scope of absolute immunity while adhering to the Vienna convention framework. Agreements regarding the conduct and possible liability drawn from it can be made and  standardised to include an automatic waiver of diplomatic immunity in cases of grave offences allowing the institution of criminal justice machinery against the accused. This approach not only upholds the principle of state sovereignty but also permits states to determine the treatment of their diplomatic staff, while addressing the principle of reciprocity by ensuring equitable treatment for their diplomats in the host state. It also still largely functions within the principle of functional necessity that can help in embedding it within customary practices of International Law.

 

Additionally, scholars have proposed establishing an International Diplomatic Disputes Criminal Justice Court which will have jurisdiction to adjudicate cases involving diplomats who are accused of perpetrating grave criminal offences. Further, the court would have the authority to impose financial penalties and, if deemed essential, incarcerate diplomatic agents within its own correctional facilities.  In this proposition, the court would function as an inquisitorial institution assuming the dual role of both the prosecution and defence.

 

Notably, the establishment of this court addresses the concerns of bias that are present in a trial conducted either by the sending or the receiving state. Furthermore, the adoption of a judicial mechanism beyond a bilateral diplomatic framework serves to avert the severance of diplomatic ties in the most extreme scenarios as the adjudication would be done by a panel agreed by both the parties to be unbiased and would bind them in its decisions making.

 

Implementation of the above mentioned solutions to the Majed Hassan Ashoor case would have provided the victims a legal remedy. A pre-signed bilateral agreement between India and Saudi Arabia delineating the course of action in case a diplomat commits grave offences as such could have relieved India of its anxieties regarding its relationship with the sending state. Additionally, in the presence of an International Criminal Justice system would allow the aggrieved persons to claim financial remedies to aid in resettling after they faced humiliation and expulsion from their communities, in addition to other penaltiesThese solutions clearly highlight the gaps in International law on diplomatic immunity and how it has been exploited thus far in favour of accused to sidestep liability and deny justice.


Author: Sannah Mudbidri

University: 3rd Year, National Law School of India University

Programme: BA LLB


Co-Author: Pravidhi Rawat

University: 3rd Year, National Law School of India University

Programme: BA LLB

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