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Diplomatic immunity

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.



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