“A diplomatic representative has come to be the principal machinery by which inter-course between states is being conducted”. Discuss and explain the immunities available to Diplomatic representatives.
What or who does the post-cold war diplomat represent? Two trends are evident: increasing institutionalized multilateralism aimed at a stronger international order, either by improving cooperation between states or transcending the need for it; and the tendency to see diplomats in terms of the skills they possess and the jobs they do, rather than whom they represent. Because both developments seem to move diplomats further away from the sovereign state, their traditional source of authority and raison d’être, a number of writers have raised the possibility that diplomacy’s identity as a discrete practice may be subsumed under broader notions of conflict resolution and bargaining.
This neither is nor ought to be the case. Diplomats and the diplomatic system continue to derive their authority from the claim that they represent sovereign states in their relations with one another and not from some wider notion of international community, of which states are but one expression.
The Idea of Diplomatic Representation:
The idea of diplomatic representation has had problems throughout the life of the modern diplomatic system. If Michel Foucault was right, medieval thought accepted the idea of direct correspondence, one-for-one, far more readily than we do today.(3 ) The medieval ambassador represented his sovereign in the sense that he was him or embodied him (literally in some readings) when he presented himself at court. Since then, however, representation has come to involve at lease three elements: the sovereign; the ambassador as a person; and the ambassador in his representative capacity as the “sovereign.” Diplomats are frustrated when people think they enjoy the grind and tedium of what some of their number in the United States Department of State refer to as “flowerpot duty,”(4) but there is no general agreement about the value or necessity of such work.
Diplomatic Representation and Popular Sovereignty:
Constructing a means of escape so that international relations might be transformed is usually presented either as a social theory parable about the need for international reform or as a historical narrative of tragic proportions. In the former, sovereign state diplomacy, born in the simpler times of seventeenth-century Europe, failed to deal with the challenges of the increased application of science and technology to the satisfaction of a variety of human purposes. It could not prevent war when wars became too destructive. It could not secure prosperity when prosperity became dependent upon extensive cooperation across borders. And it ceased to be an authentic expression of the way human beings associated or ought to associate, either transnational or sub nationally.
Personal Inviolability and Diplomatic Immunity in Respect of Serious Crimes:
Personal inviolability and diplomatic immunity from criminal jurisdiction still remain among the most problematic issues in modern diplomatic law. Such special privileges have for long effectively protected diplomatic representatives and other foreign officials from interference with their freedom, which may be attendant upon penal proceeding, the objective of which is the curtailment of financial or personal liberty in the interests of punishment or deterrence. However, 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, abuse their inviolability and immunity. Such abuses may still be tolerable by the receiving state in the name of securing effective performance of diplomatic functions, if these abuses involve merely minor offences or crimes. But do receiving states 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 present article intends to address such issues and examine possible solutions to these problems and possible remedies against abuses of diplomatic status.
1. Diplomatic immunity from criminal jurisdiction
1.1. Concept of diplomatic immunity:
The immunity of a diplomatic representative from the criminal jurisdiction of the receiving state was, in earlier literature, regarded as indistinguishable from his personal inviolability. At the time when the principle of personal inviolability was first clearly established, it was unusual for criminal proceedings to take place without prior arrest and detention of the accused. But as time passed and the arrest and detention of the accused was not essential for criminal proceeding, diplomatic immunity from criminal jurisdiction emerged as a separate principle of diplomatic law. Diplomatic immunity from criminal jurisdiction is unqualified and absolute. The legal consequence of diplomatic immunity from criminal jurisdiction is procedural in character and does not affect any underlying substantive liability. Therefore, whenever immunity is established and accepted by the court, the latter must discontinue all proceedings against the defendant concerned. The court has to determine the issue of immunity on the facts at the date when this issue comes before it and not on the facts at the time when an event gave rise to the claim of immunity or at the time when proceedings were begun.
1.2. Re-evaluation of the concept
1.2.1. Excluding immunity in case of grave crimes:
Although the Vienna Convention makes no attempt to distinguish crimes according to their gravity, one may want to draw a line between the crimes of different gravity and also discuss the corresponding degree of immunity. Such people would argue that diplomatic agents should not indeed be disturbed with proceedings in respect of minor or not so important offences compared to the necessity to ensure effective performance of diplomatic functions, but in case of serious or generally dangerous offences the immunity of a diplomat should not become a basis for his impunity. The practical problem is that there is no unified definition of different degrees of crimes, as it is up to national laws of individual states to divide crimes according to their gravity.
1.2.2. Limiting immunity to official acts:
Occasionally it has been suggested that diplomatic agents should enjoy their diplomatic immunity only in connection with actions forming part of their official functions. Therefore, any illegal acts, which are private acts in character or committed in connection with private activities, are under the jurisdiction of the receiving state and the latter can adjudicate over the offending diplomat. On the one hand, this can cause serious problems when deciding whether this or that action falls under acts performed in a private capacity or as part of official functions as numerated in article 3. Indeed, a Portuguese court once held that article 3 sets out the general framework for diplomatic functions and must be interpreted as also covering all other incidental actions, which are indispensable for the performance of those general functions listed in that article.
1.2.3. Hierarchy of norms:
One way of excluding diplomatic immunity in case of serious crimes is to establish a hierarchy between norms granting such immunity and norms protecting certain fundamental values such as human life and then show that the latter norms have priority over the former norms. We can follow this line of argument most likely in the case of human rights and international humanitarian law, which may not be derogated from at all or in very limited occasions. Both diplomatic law and norms protecting human beings in peacetime and in wartime have been described as general and fundamental.
2.3. Position of Estonian legislation on diplomatic immunity:
Estonia is a party to the Vienna Convention and according to the Estonian Constitution the latter is directly applicable and has priority before other legal acts in the national legal system. Even if Estonia were not a party to the Vienna Convention, it would be bound by the principles of personal inviolability and diplomatic immunity because they represent well-recognized general principles of international law and such principles form an inseparable part of the Estonian legal system.*38 However, the Estonian Code of Criminal Procedurealso addresses the issue of diplomatic immunity and states in § 4 (2) that the code is not applicable to a person who has diplomatic immunity, unless the foreign state specifically requests to apply the code to that person. Such wording is somewhat strange, as the foreign state does not have to request the application, but merely waive the immunity and therefore give permission to application.
The Penal Code takes advantage of many principles of criminal jurisdiction recognized under international law. Besides the principles of territoriality, passive personality and “vicarious administration of justice”, § 7 (3) of the Penal Code also enacts the principle of nationality or active personality. According to the latter, the Penal Code is valid for crimes committed outside the territory of Estonia if the person who committed those crimes was a national of Estonia or became one after committing those crimes. This provision should guarantee the effectiveness of article 31, paragraph 4 of the Vienna Convention and extend Estonian criminal jurisdiction to those diplomatic agents who represent Estonia abroad and are Estonian nationals.
3. Possible remedies against abuses of diplomatic status:
Most remedies discussed previously are still theoretical and most likely require amendment to the Vienna Convention in order to become effective and applicable. This development is, however, unlikely, as states are not anxious to change the Vienna Convention and put at risk a stable and more or less satisfactory and operable system.But now we will examine certain remedies that customary international law, the Vienna Convention, and other international instruments provide and receiving states can make use of to deal with cases where a person enjoying diplomatic immunity has seriously breached local or international law.
Scholars who tend to challenge the absolute nature of diplomatic immunity from criminal jurisdiction often argue that the receiving state may invoke self-defense as the basis for trial and punishment of offending diplomats. This was a popular view among writers in the 15th to 17th centuries, when conspiracy became quite a common crime committed by ambassadors. The main argument was that diplomatic immunity cannot be more important than the security of the receiving state, but nevertheless the sovereigns did not follow this line of argument and used other means to deal with the diplomats in question.
3.2. Waiver of immunity:
The reaction of the receiving state to criminal offences committed by diplomatic agents depends largely on the gravity of the alleged offence. But when more serious crimes are concerned and admonition is not considered as a satisfactory punishment, it is more likely that the receiving state will request the sending state to waive the immunity of the offending diplomat so that the latter could be tried in court.
As diplomatic immunity belongs to the sending state and not to the diplomatic agent, it is only the sending state that has the right to waive the immunity.The waiver must always be expressed*49 and once given the waiver is irrevocable.
3.3. International criminal procedure:
The principles of personal inviolability and of diplomatic immunity only restrict the jurisdiction of the receiving state and possible transit states, thus not having an ergaomnes effect. Therefore, offending diplomatic agents can be prosecuted in certain circumstances as discussed above. But in addition to those there is one more possibility, namely where such diplomats are subject to criminal proceedings before certain international criminal courts.
Presently, we have to conclude that the possibilities to prosecute diplomats or other state officials who have committed serious crimes but enjoy personal inviolability and diplomatic immunity are very much limited, both in number and effectiveness. As amendments to the Vienna Convention are unlikely to be achieved either through treaties or custom, so far we have to hope for greater readiness of sending states, in co-operation with receiving states, to ensure prosecution of serious criminals. Hopefully, we can in the future also rely on proceedings before the ICC, which should be the least biased and restricted. The problem is that the principle of reciprocity prevents states from introducing, through practice, perhaps desirable changes to diplomatic law by establishing a hierarchy between diplomatic laws on the one hand and human rights and international humanitarian law on the other. But besides ensuring prosecution, receiving states should also attribute more importance to the prevention of such crimes by asking sending states to provide general and possible criminal background information on the diplomat and explanations about why the person left prior postings (if not because of normal termination of functions) and also by contacting those countries where the diplomat in question has served prior terms and inquire as to whether any problems arose involving that person.
1 United Nations Treaty Series, 1964, vol. 500, p. 95.
2 See S. Mahmoudi. Some Remarks on Diplomatic Immunity from Criminal Jurisdiction. – J. Ramberg, O. Bring, S. Mahmoudi (eds.). Festskrift till Lars Hjerner: Studies in International Law. Stockholm: Norstedts, 1990, p. 327.
3 Hereinafter the Vienna Convention on Diplomatic Relations is referred to as the Vienna Convention.
4 I.L.C. Yearbook, 1958, vol. II, p. 105.
5 See also article 41, paragraph 1 of the Vienna Convention, which states that “without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State”.
6 R. Higgins. The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience. – American Journal of International Law, 1985, vol. 79, p. 645.
7 See C. J. Lewis. State and Diplomatic Immunity. 3th ed. London: Lloyd’s of London, 1990, p. 135. For example, the Spanish ambassador Mendoza was expelled in 1584 on suspicion of conspiracy against the English queen. But at the same time, the French ambassador d’Aubéspine, who fell under similar suspicion three years later, continued to act as ambassador to Queen Elizabeth after the French king had ignored a request for his recall and he was not tried for his acts.
8 I.L.C. Yearbook, 1957, vol. I, pp. 209–210; Vol. II, p. 138; I.L.C. Yearbook, 1958, vol. II, p. 97.
9 Hereinafter all references to articles are references to the articles of the Vienna Convention if not noted otherwise.
10 States are under no obligation to have specially defined crimes if victims are diplomatic agents. Estonia, however, has expressisverbiscriminalised attacks on internationally protected persons, which include also diplomats. – Subsection 246 (1) of the Estonian Penal Code (karistusseadustik). – RiigiTeataja (the State Gazette) I 2001, 61, 364; 2002, 64, 390 (in Estonian).
11 I. Brownlie. Principles of Public International Law. 5th ed. Oxford: Oxford University Press, 1998, p. 358.
12 It is interesting to note that in his statement, when answering to the request of a senator about French policy concerning diplomatic immunity, the French Prime Minister said that a diplomatic agent may not be arrested or detained except in case of un flagrant délit, that is a case requiring no further collection of evidence. The value of this kind of a statement is very doubtful and these on-the-spot arrests, under the circumstances whatsoever, clearly violate the inviolability of a diplomatic agent. See Journal OfficielSénat, 16 December 1999, p. 4137.
13 United States Diplomatic and Consular Staff in Teheran. – I.C.J. Reports, 1980, p. 3, respectively paras. 67 and 76.
14 This Iranian position is, however, faulty, as the only reprisal allowed by the Koran is the prevention of an envoy’s departure (basically a violation of personal inviolability), but even that only if the envoy of the receiving state is being treated in the same manner. See C. Bassiouni. Protection of Diplomats under Islamic Law. – American Journal of International Law, 1980, vol. 74, p. 620.
15 I.L.C. Yearbook, 1958, vol. II, pp. 94–95.
16 Article 3 points out clearly that the diplomatic agent represents the sending state and the preamble also acknowledges the link between the immunities of diplomats and their function as representing the sending state.
17 See Empson v. Smith, Queen’s Bench Division. – 1 Q.B. 426 (1996).
18 Article 41, paragraph 1 (see also Note 5).
19 See for example Dickinson v. Del Solar, King’s Bench Division, – 1 K.B. 376 (1930).
20 See also Arrest Warrant of 11 April 2000. Available at: http://www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/icobe_ijudgment_ 20020214.PDF (30.7.2003). Though this case did not actually concern any diplomatic agents but an incumbent Minister for Foreign Affairs, we can draw parallels to our topic as high officials of a state also enjoy immunity similar to diplomatic immunity.
21 See article 31, paragraph 1.
22 Article 31, paragraph 3, though there are still exceptions in case of execution of certain judgments in civil matters from which diplomats do not enjoy immunity.
23 See for example the case of Gustavo J. L. and Another before the Supreme Court of Spain. – International Law Reports, 1991, vol. 86, p. 517.
24 United Sates Diplomatic and Consular Staff in Teheran (Note 13), para. 79.
25 Text of the Rome Statute of the International Criminal Court is available at: http://www.icc-cpi.int/docs/basicdocs/rome_statute(e).pdf (30.7.2003).
26 C. Rousseau. Droit international public. Vol. IV. Paris: Sirey, 1980, p. 202.
27 Article 31, paragraph 4 states that “the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State”.
28 Revue Général de Droit International Public, 1984, p. 674.
29 See United States v. Erdos, United States Court of Appeals (4th Circuit). – 474 F.2d 157 (1973).
30 See S. L. Wright. Diplomatic Immunity: A Proposal for Amending the Vienna Convention to Deter Violent Criminal Acts. – Boston University International Law Journal, 1987, vol. 5, pp. 177–211.
31 See Portugal v. Goncalves. – International Law Reports, 1990, vol. 82, p. 115.
32 Arrest Warrant of 11 April 2000 (Note 20), para. 55.
33 See J. E. Donoughue. Perpetual Immunity for Former Diplomats? A Response to “The Abisinito Affairs: A Restrictive Theory of Diplomatic Immunity?” – Columbian Journal of Transnational Law, 1988–1989, vol. 27, pp. 615–630.
34 See D. Ben-Asher. Human Rights Meet Diplomatic Immunities: Problems and Possible Solutions. Available at: http://www.law.harvard.edu/Admissions/Graduate_Programs/publications/papers/benasher.pdf (30.7.2003).
 Modern Diplomacy. Ed by J. Kurbalija (1998)
 article 41, paragraph 1 of the Vienna Convention, which states that “without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State”.
 Article 3 points out clearly that the diplomatic agent represents the sending state and the preamble also acknowledges the link between the immunities of diplomats and their function as representing the sending state.
 D. Ben-Asher. Human Rights Meet Diplomatic Immunities: Problems and Possible Solutions. Available at: http://www.law.harvard.edu/Admissions/Graduate_Programs/publications/papers/benasher.pdf (30.7.2003).