Essay/Term paper: Diplomatic immunity

Essay, term paper, research paper:  History Essays

Diplomatic Immunity


INTRODUCTION

United Kingdom, 1982

While unloading the ship which carried the embassy's materials, one box marked
"household effects" dropped from a forklift. More than six hundred pounds of
marijuana worth 500,000 British pounds (1982 prices) spilled dockside.

For centuries governments have used ambassadors, and diplomats to represent
their nation. These special envoys have done everything from resolving years of
conflict, deciding on how much humanitarian relief will be sent to a nation, or
just being present at diplomatic dinners and ceremonies. These people have been
the vital link between nations, and they have enjoyed complete immunity from the
law of the host nation. Originally this immunity was extended as a courtesy to
allow for an uneventful stay in the host country. While in a foreign country on
official business, the diplomat would be granted exemption from arrest or
detention by local authorities; their actions not subject to civil or criminal
law. For the longest time this privilege produced little or no incidents.
However, this unique position of freedom that diplomats, their family, and staff
have been graced with has not been so ideal. Recently the occurrences of abuse
for personal or national gain has grown out of proportion. What once protected
the diplomat and his staff from parking tickets and some differing social laws,
now grants them protection under the law to commit crimes such as drug
trafficking, kidnapping, rape, and murder. Even though serious crimes are rare
and punishable to various extents in most countries, domestic authorities were
forced to look the other way. While it would be convenient to believe that the
six 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 guise
of diplomatic immunity.

HISTORY/DESCRIPTION

The international community has tried to develop a universally accepted set of
norms governing the conduct and privileges of diplomats abroad. These few
Articles 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 tried
only if immunity is waived.

Article 32: Only the sending country can waive immunity

Article 41: Diplomats should still respect the laws and regulations of the host
state.

Baring few changes, the 1961 Vienna Convention on Diplomatic Relations remains
the basis for interaction between states. This convention tackles the problem by
dividing the privileges of immunity into four classes. The diplomat and his
family enjoy "complete" immunity. They cannot be arrested, detained or taxed.
They do not fall into the realm of jurisdiction of the host country. Further
they cannot be asked to stand trial or submit to having their possessions
searched. The diplomatic staff are granted these same rights while performing
official diplomatic business. Private servants have only been granted immunity
from 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 declare
any 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 major
problems with the standards regarding conduct of diplomats. Originally the
concept of diplomatic pouch was used to permit secrecy on official visits by
foreign staff. This policy of ultimate secrecy becomes important when diplomats
are venturing into unfriendly territory. Further, an explicit trust is granted
to the diplomats to allow for free communication between the diplomat and their
sending country. However this gracious offer of trust allows for easy abuse. A
British foreign affairs committee declared, "The only way, in fact, to find out
if diplomatic bags contain prohibited items would be to drop them while
unloading them from the aircraft and hope that they would split open" ("First
Report of the Foreign Affairs Committee of the House of Commons," p. 617).

Smuggling of drugs, weapons, and priceless artwork are all to common. In these
cases, abuse of the diplomatic pouch is obvious, yet in some instances the
sending country is also involved. Once a diplomat is accused of a crime in the
host country the only means possible to bring the diplomat to justice is to have
the sending country waive the diplomat's immunity. In most cases the sending
country wishes to protect its reputation and ultimately the reputation of the
diplomat, therefore refusing to give up immunity.

The question of rescinding immunity brings up the second major aspect of this
topic. When a crime is committed what options do the two countries have to solve
the problem? The first option is to have the sending country waive the
diplomat's immunity, allowing the diplomat to be punished for the crimes
committed in accordance with the laws of the host nation. While this is a
preferable solution, it is not very common as explained earlier. Another
solution is to declare the diplomat in question "persona non grata"
(unacceptable). This forces the sending nation to recall the diplomat or remove
the diplomat from the post all together. The third solution is the complete
severing of all diplomatic ties. The latter two solutions present many problems.
Rejection of a diplomatic mission produces unwanted tension between nations and
jeopardizes current progress. Many times the crime goes unpunished.

Something must be said for the diplomats doing their job every day and making
this world a little safer to live in. Most diplomats are courteous law abiding
citizens of the sending country. Out of respect for the host country and to
protect the integrity of the mission most diplomats follow the laws and social
graces of the host nation. However the Vienna Convention allows for an
incredible amount of personal liberties, which can be easily abused.

There are a myriad of problems with diplomatic immunity. However all of the
solutions fall into the category of international relations. When crimes of an
individual are compared with interactions between two or more nation states, the
alleged individual crimes become less important. Nonethess, it is the truth and
reality therefore we must deal with it accordingly. There have been many
explanations supporting the need of diplomatic immunity. The many ideas can be
reduced to three ideas. The first dates back many centuries. The diplomat was
considered an arm of the government represented. Thus an insult to the diplomat
was an insult to the sending ruler. The second idea is one of
extraterritoriality. In short the diplomat never officially leaves the sending
country. Just as embassies are considered territories of the countries the
represent, the diplomat would remain within jurisdiction of the sending country
while in the host country. The third idea and the by far the most popular
explanation is one of :functional necessity." The privilege of diplomatic
immunity is argued to be necessary component of the diplomatic mission. Debate
continues on the extent of this immunity, yet the agreement continues on the
idea 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 in
New York City.

Another example occurred in July of 1984. Customs officials in Rome were
checking bags when they heard moans coming from one of the bags. The bag was
marked "diplomatic bag" and belonged to the foreign minister in Cairo. When the
bag was opened a drugged Israeli was found inside. The bag was evidently used
often. It was lined in leather and had a chair fitted to the bottom. There was
helmet 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 Copenhagen
in 1976. Earlier officials had been detected carrying 400 kilos of hashish into
Cairo. In all of these occurrences nothing could be done because of diplomatic
immunity.

The abuses of immunity are becoming increasingly worse. While functional
necessity is a valid argument, a solution to the problem is needed.

CURRENT STATUS

The current status of diplomatic immunity has been constant since the original
draft of the Vienna Convention in 1961. On the twenty-fifth anniversary of the
Vienna Convention, the Legal Committee of the General Assembly reported that
they were satisfied with the convention as it stood (A/RES/41/79). In 1989 the
Legal Committee decided to examine the courier and his status. Experts were
brought in at the next session to informally discuss the individual clauses and
answer questions. Again the final response was that everything was acceptable
(A/RES/45/43). The closest the United Nations has come to re-examining the
entire convention was in 1985, when a opinion was drafted explaining the
technicalities. (A/CN.4/SER.A/1985/Add.1( Part 2)) The United Nations has
recognized the problem, but there currently remains no solution.

Solutions have been formally discussed yet no amicable resolution has been
produced. 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 insurance
policy. The second theory proposes a claims fund. Both theories allow countries
to have a way to remunerate those who have suffered from criminal acts but it
still does not insure the bringing to justice of the alleged perpatrator.

The most popular idea is the creation of a permanent international diplomatic
court. Ideally the alleged would be brought to answer for the crime in front of
his peers. However a myriad of problems arise. First, you must be able to bring
the accused to the court to answer for the crime. Second, you must form a jury
composed of enough countries to prevent a bias. Third you must account for a
drastic difference in the underlying fabric of each countries values. Fourth and
probably the hardest problem to deal with is the maintenance of the
infrastructure needed to support this international court. Or in short who is
going 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 a
diplomatic immunity to use a firearm to commit a felony, with the exception of
self-defense. Nonetheless, a solution should be produced by the whole
international community.

COMMITTEE MISSION

Your mission is to solve some of the problems that diplomatic immunity has
presented. As you know you must gather a majority to pass the resolution, so I
will pass on a few tips and some questions you should consider. You must
remember that sovereignty is basis for the United Nations. Therefore no
resolution can violate the sovereignty of a nation. All resolutions should
aspire to solve the problem and attempt to please all the parties directly and
indirectly involved with the problem.