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Diplomatic law and justice

By V. S. Mani

Diplomatic immunity does not mean total escape from legal liability.

THE MEDIA reported the death of an embassy driver, Dilvar, resulting from an assault on him allegedly by the son of the Senegal Ambassador in New Delhi on the night of May 24. The incident puts the spotlight on the international law of diplomatic immunity — immunity from arrest and criminal proceedings, enforceability of criminal liability of the accused in his country and compensation claims of the kin of the deceased — a vast grey area.

The concept of immunity of the diplomatic representatives of one country (the sending state) in another (the receiving state) is well established since the beginning of the 18th century. It is based on two considerations. One, the diplomat is the sovereign representative of his national state and its peoples. Two, as stated in the Preamble to the 1961 Vienna Convention, "the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions." Despite this `functional' basis, however, the diplomatic law goes a long way to reflect the theory of absolute immunity, ever since the adoption of the U.K. Diplomatic Privileges Act, 1708, passed in the wake of the arrest of a departing Russian Ambassador for certain debts he owed in London.

Both the host states as well as the beneficiaries of the immunities have, at times, violated the law of diplomatic immunity. In 1929, French officials forcibly entered the Soviet embassy in Paris upon allegations that certain individuals, who were likely to be executed, were being detained there. The French justification was that the intervention was consistent with international law, "because no civilised state could permit a foreign legation to be made a place of imprisonment, or, a fortiori a place of execution." In 1973, Pakistani officials forcibly conducted a search of the Iraqi embassy that led to the discovery of a huge cache of arms. Pakistan justified its action on grounds of incompatibility of storage of arms with the functions of the mission. In 1984, when a group of Libyan dissidents demonstrated in front of the Libyan embassy in London, it was fired upon from the embassy windows resulting in the killing of a British policewoman and injury to some 11 demonstrators. The U.K. severed diplomatic relations with Libya and expelled the diplomats. In Teheran after the fall of the Shah, a number of American diplomatic and consular officers were held hostage for weeks in the American embassy by some militant Iranian students, whose actions were subsequently ratified by the Iranian authorities. The International Court of Justice, in its judgment of 1980, took a stern view of the treatment meted out to the diplomatic agents for which it held the Iranian Government responsible, and underscored the importance of scrupulous observance of the diplomatic law.

Among the instances of abuse of immunity by diplomats themselves — traffic offences, including rash and negligent driving, often in an inebriated condition, resulting in death of or injury to innocent passers-by, or damage to property — are a legion. Instances of domestic violence and child abuse, smuggling of guns, drugs and other contraband goods including artefacts, and clandestine support to terrorist groups in the receiving state have also caught the attention of the media. There have been several instances of misuse of the `diplomatic bag'. In 1984, Dikko, a Minister in the overthrown Nigerian Government, was kidnapped in London, drugged and put in a crate at the Stanstead Airport awaiting shipment to Lagos where he was wanted in certain criminal charges. The crate was labelled "diplomatic baggage", with no other visible external mark. Alerted by medical odours emanating from the crate, the U.K. Customs officials opened it. The British Foreign Secretary observed that even if the crate were a diplomatic bag, "the overriding duty to preserve and protect human life" might have justified the opening of it in appropriate circumstances. Two members of the Nigerian High Commission in London were expelled, and one of the kidnappers sentenced to 12 years of imprisonment.

In a 1984 episode, an Israeli national was found drugged at the Rome airport to be shipped in a crate to Cairo, marked "diplomatic mail." Italy declared a First Secretary at the Egyptian Embassy in Rome persona non grata and expelled a few others. The Egyptian ambassador condemned the incident and pleaded ignorance. In the famous Sun Yat Sen incident of 1896, he was kept in detention in the Chinese embassy in London. A British court refused a writ of habeas corpus on ground of diplomatic immunity. The British Government, however, denounced the detention as "an abuse of diplomatic privilege" and "a flagrant violation of municipal and international law" and warned that "if persisted in or repeated, it could justify the use of whatever measures might be necessary for the liberation of the captive, and a demand for the immediate departure from this country of any person responsible for his imprisonment."

Articles 41 and 42 of the 1961 Vienna Convention expressly circumscribe the diplomatic privileges and immunities. Article 41 imposes three sets of duties on a diplomat and his embassy: (1) a duty to respect the laws and regulations of the receiving state and a duty "not to interfere in the internal affairs of that state," (2) a duty to conduct the diplomatic business with or through the Ministry of Foreign Affairs of the receiving state or such other ministry as may be agreed and (3) a duty not to use the premises of the mission "in any manner incompatible with the functions of the mission." Article 42 forbids a diplomat "to practise for personal profit any professional or commercial activity." But neither the Convention nor general international law provides for remedies, should any of these duties be violated. The usual response of receiving states has been either to get the offending diplomat "recalled" by his home state or, if that is not possible, declare him persona non grata and get him out of the country. Indeed, general international law would permit taking of countermeasures in appropriate cases, within the limits prescribed by the law. However, the efficacy and choice of each of these responses will have to be primarily assessed in terms of considerations of reciprocity and bilateral relations of the sending and receiving states.

What of the demands of criminal justice and compensation to victims of crimes committed by diplomats? It must be borne in mind that diplomatic immunity does not mean total escape from legal liability. In a suit for injury caused by the car of a Secretary of the Peruvian embassy in London, a British court ruled in 1930 that international law does not impart immunity from legal liability but only from local jurisdiction. To comply with the demands of criminal justice, the sending state must either waive immunity from the jurisdiction of the receiving state, or recall the offending diplomat and proceed against him on the basis of the principle of nationality. (According to this principle, any person is liable to be proceeded against for violation of his national laws, irrespective of the place where he may have committed the offence: Section 4 of the Indian Penal Code applies the Code to all Indian nationals wherever they may be). Indeed, the 1961 Vienna Convention has made the waiver of immunity discretionary on the part of the sending state and is silent on prosecution of the diplomat in his home state. This needs to be remedied.

The issue of compensation is equally important. Section 86 of the Indian CPC has made all civil actions against a foreign government subject to prior consent of the Central Government. The Government consent generally is discretionary (except in four well-defined categories of cases including civil actions relating to immovable property). However, one learns that the Government is fairly liberal in giving its consent under this provision of law. Therefore, Dilvar's kin are well advised to first exhaust the administrative channels of the Senegal Embassy/Foreign Ministry, and then take the CPC route. Further, private claims of Indian nationals against foreign states could also be espoused on the international plane by the Ministry of External Affairs in appropriate cases under the law of state responsibility. There already exists a strong case for an urgent overhauling of the Indian law of sovereign immunity. The compensation issue raised by the Dilvar incident further augments it. Claims for civil damages, contractual claims (including claims arising from contracts of employment with a foreign embassy), and claims arising from commercial transactions must be excluded from the purview of sovereign immunity.

(The writer teaches International Law at JNU.)

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