Tuesday, 22 August 2017


One of the most burning issues in international law today is not so much as the enforceability of treaties as much as the burden of sovereignty, jurisdiction and violations as impediments to observance/adherence of law and order in the international system.
Perhaps, more overlooked is the subject of abuses of diplomatic and consular privileges and immunities by diplomatic officials—heads of state, foreign ministers, their families, embassy staffs and such others. Since 1961, many cases of overt, covert and flagrant abuses were reported in the media, but over the years, reportage has dwindled, not because such abuses have ceased, but they have become too frequent that even host governments and their news media are tired of publishing.

International law bestows immunity on certain state officials which attach to the office or status of the official. This immunity is provided as long as the official is in office, and it is usually described as “personal immunity” or “immunity ratione personae”. It has been a long held norm that under customary international law, the head of state and diplomats accredited to a foreign state possess immunities from arrest and prosecution in, and from jurisdiction of foreign states.

By Section 37 of the Vienna Convention on consular relations, every foreign consular officer, the members of their families, official or domestic staff must be accorded immunity from prosecution. Under section I (1) of the Diplomatic Immunities and Privileges Act of 1962, members of families of those staff must be accorded immunity from prosecution. Diplomatic immunity exists to enable states engage in diplomacy because without such provision, it will be far too easy for nations to detain ambassadors, foreign officials and other members of diplomatic missions, creating a hostage situation, thus leading to a crisis that may upset relations between nations. To put it succinctly, these immunities are necessary for the maintenance of a system of peaceful cooperation and coexistence among states, expressly pointed out by the International Court of Justice (ICJ) in noting that “no more fundamental prerequisite for the conduct of relations between states than the inviolability of diplomatic envoys and embassies”.
News filtered in last week that wife of Zimbabwean president, Grace Mugabe assaulted 20-year old South African Model, Gabriella Engels in South Africa. Quite naturally, this was expected to raise storm, and quite naturally, it did, as the alleged victim pressed charges. What was unprecedented however was the drama that surrounded the incident. From charging her to court, the first lady failing to show up as initially agreed, to putting South African border posts on red alert, the incident has once again brought to the fore and underscored the culture of impunity of top government officials in foreign lands by virtue of immunity. Perhaps, even less surprising is the news that she had been allowed to leave the country early Sunday morning (20th August).

The freedom in which diplomatic immunity grants to families of officials originally granted immunity is in itself an antithesis because by the same rule, the abuses of the privilege are unprecedented, and leads to the debate of whether the whole notion of diplomatic immunity is a surplussage or a time honoured necessity. The burden of this law, as recognized by the signatories to the 1961 Vienna Convention, questions the exact rationale behind granting immunity to families of officials. Not only family members, the diplomats themselves have been found in such ugly situations of diplomatic crossfire. Recall the 1967 “Funeral Pyre” incident where Burmese Ambassador to Ceylon (Sri Lanka) Sao Boonwaat caused international headlines when he shot and killed his wife over an alleged extra marital affair with a night club singer and cremated (burnt) her body to ashes, the latter action which drew the attention of the police. As expected, the police could not enter into the compound because it was technically Burmese territory, and at such, being inviolable under international law by virtue of sovereignty of states and the sanctity of their diplomatic missions. The said ambassador was later recalled to Burma—without prosecution.

An almost similar incident occurred in 2012 when the Japanese Ambassador to the United States, Yoshiaki Nagaya was charged for injuring his wife after throwing her off a moving van. He was arrested only because he was not on official duty as at the time of his arrest, and although charged with sixteen instances of domestic abuses (which included knocking out his wife’s teeth and stabbing her in the hand with a screwdriver). The worst punishment he got was a one year prison sentence and a mandatory completion of a hundred and four hours of domestic violence counseling and three years of probation, a feat the US Justice Department was able to pull after the Japanese government decided to waive his diplomatic immunity only after a wave of public indignation.
Mrs. Mugabe follows an almost equally similar pattern, let of in the name of allowing peace to reign between Zimbabwe and South Africa who already have fraught relations with each other. But allowing peace to reign in the clouded nexus of impunity and blatant disrespect of foreign laws has increasingly become the clog in the wheel of efforts designed towards adherence to international law, which has over the years, become a virtual microcosm in mutual relations between states.

The news of Mrs. Mugabe assaulting a model who she found in the company of her sons in a top hotel in Johannesburg hardly came as a surprise to many, especially because this is not the first time she’s been involved in an international scandal. It is interesting to note that she has a particularly unenviable record of assault in foreign trips. In 2009, on a private visit to Hong Kong, she reportedly assaulted a Sunday Times Reporter when he tried to take pictures of her on way outside her hotel. Against the efforts and attempts of the reporter at getting justice, police authorities in Hong Kong accepted her plea of immunity, citing customary international law as the basis of their actions (of letting her off without prosecution).

The above incidents and more cases like that are enough arguments for the grounds of removal of diplomatic immunity granted to families of heads of states and governments, ministers of foreign and their families. The end point is to create a precedent for deterrence of acts of subversion, domestic and international crimes, and all such acts that are statutorily against the domestic laws of a host nation. All too often, serious crimes and grievous offences are committed by these sets of persons, but largely go unpunished because of the immunity clause, and as a result, have laid more grounds for transgression. Grace Mugabe is an example of person who breaks the law repeatedly and impunity with the underlying knowledge that the law is merely a set of rules written for the powerless.
A rupture of diplomatic relations between two states can, and almost certainly will happen if the convention that instituted them in the first place was to remove them. The usual argument in favour of retaining the extension of these immunities has always been hinged on the need for diplomats to carry out their duties without fear of arrest, prosecution and imprisonment sometimes without an offence, seemingly due to mutual suspicion between two states.

Despite the provision of waving a diplomat’s immunity by his home government in order to allow him stand trial in the state where he commits a crime, there is no gainsaying the fact that waiving diplomatic immunity has done little or nothing to curb the excesses of diplomatic officials and their families. Many a times, home governments stubbornly refuse to wave their representatives(s)’ immunity on grounds of suspicion that the trial in the host country would not be fair. What is even more interesting is the disparity between domestic laws of states, and punishments meted to an offender. These disparities have, more often than not, informed home governmnents’ refusal to waive immunities. The pattern here is clear: sovereignty and national pride guised under fairness have done much to strain relations between states as much as the two concepts have contributed to stability of relations between them.

Furthermore, despite the fact that crimes committed by diplomatic officials in their official capacity are recognized as “official acts”, there are fertile grounds for arguing that international law is now at a stage where functional immunity (which is used in civil cases more than criminal cases) does not apply to such crimes. There have been quite a significant amount of national prosecutions of foreign (diplomatic) state officials for international crimes. All of these decisions (to prosecute) proceed—at least implicitly, or even explicitly as the case may require—on the basis of lack of ratione materiae (functional immunity) in respect of such crimes. The best explanation for the absence of the absence of the above in cases concerning international crimes is that the principle is in conflict with more recent rules of international law, and it is the older rule of immunity which must stand.
As Dapo Akande and Sangeeta Shah noted, developments in international law no mean that the reasons for which immunity ratione materiae is conferred simply do not apply to prosecutions for international crimes.

In spite of the above, Grace Mugabe’s actions will sadly go unpunished, and once again, the onus is on state governments and ministries of foreign affairs to properly educate their officials and family members and help them to understand the scope and limitations of the privileges and immunities that flow from their diplomatic or consular status, including the liabilities that their status imposes upon them. Continuous and frequent violations of foreign laws and abuse of (diplomatic) immunities and privileges will always continue and may headline the news, until another convention similar to the ones held in Vienna in 1961 and 1963 is convened by the United Nations to examine these overbearing laws with a view to addressing the wrongs caused by it as it is doing much to negatively affect interstate relations as much as the provisions promote peace in the international system.

MacHarry Confidence an international affairs analyst and a sociopolitical issues commentator, is a student of international Studies and Diplomacy, in the department of History and International Studies, University of Benin, Benin City Nigeria.
Follow him on Twitter @Raw_Diplomat

No comments:

Post a Comment