Violation of Human Rights

Prevention Of Abuse Of Diplomatic Immunity And Violation Of Human Rights

Introduction

Diplomacy is defined as the art and practice of conducting negotiations between representatives of groups or states. Diplomatic personnel of various kinds perform their functions in receiving as well as in sending states. Thus, Diplomatic protection is based on the premise that the injury to a national abroad is an injury to his State.The variety of means adopted by States to conduct diplomacy with each other is governed by a special body of diplomatic law. Thus, The Vienna Convention on Diplomatic Relations in 1961 is a comprehensive formulation of rules of modern diplomatic law, providing the diplomats with special privileges and immunity to conduct their business efficiently.

In the recent times there has been an unfortunate tendency on the part of diplomats to disregard the law of the receiving state and invoke immunity to escape liability leading to the abuse of these privileges. This has led to a gross violation of human rights. This situation results in a clash between human rights and diplomatic immunity. There is a need to prevent diplomatic crimes in order to prevent violations of people’s right.

The concern of international community is growing regarding the abuses of diplomatic immunity, particularly as it relates to the increase in dramatic incidents caused by terrorist-diplomats and international crimes. The researcher suggests a human rights exception to state immunity although such a proposal has met with little success. Immunities are a matter of debate in the context of the expanding international human rights. There is an inherent conflict when a crime is committed and granting immunity or protecting the human rights have to be weighed against each other. Such a conflict can be resolved by delving into its jurisprudence.

Therefore, this paper seeks to scrutinize the out notions of diplomatic immunity, those areas where the abuse of diplomatic immunity has caused direct and proportional harm to society, concept of international human rights and international crimes with reference to two most important cases, Pinochet’s case and Arrest warrant case.

Two- JUSTIFICATION FOR DIPLOMATIC IMMUNITY

The Special Rapporteur, Sir Gerald Fitzmaurice, during the debate in ILC in 1957 set out three theories to justify diplomatic immunity. There has been a change in the popularity of these theories but the main object to grant immunity to diplomats has remained the same.

Representational Theory

Under the theory of representation, diplomats acting on behalf of a sovereign state represent the ruler of that state. The representatives’ privileges and immunities are same that of the sovereign.However, this theory is criticized on three grounds. First, entitling the foreign envoy with equal immunity as the sending state will place the individual diplomat above the law of the host state- which does not hold good in principle. Secondly, it is ambiguous as to who the diplomat represents- with the fall of the monarch and the rise of popular.Thirdly, the theory extends no basis for protecting diplomats from the consequences of their private acts.

Hence, for these reasons, the representative of the sovereign theory has fallen out of use as a rationale for diplomatic immunity.

Exterritorial Theory

According to this theory, the diplomatic agents enjoy immunities and privileges because they are believed to be outside the jurisdiction of the state in which they are appointed. The foreign envoy is not subject to the law of the receiving state due to lack of a local residence. Although, this legal fiction received extensive popularity from international legal scholars and in judicial opinions, the sweeping implications of this theory have led to its considerable abandonment.

Functional Theory

Having gained great popularity, this theory has been as current justification for diplomatic immunity. It provides that the diplomat is not subject to the jurisdiction of local courts, because this would impede the functions of diplomatic relationsand without these immunities and privileges, they would be seriously handicapped in the performance of their functions.

In theory, diplomatic immunity originated to protect the process of furthering relations between nation states. The assertion that the diplomat cannot function efficiently without immunity implies that the diplomat must break the law of the receiving state in order to conduct international relations. Therefore, the current construction, providing diplomatic immunity to the individual, is inconsistent with the theoretical basis that accords protection only to the diplomatic process.

Immunities And Privileges Of Diplomatic Immunity

The Vienna Convention On Diplomatic Relations, 1961[VCLT]

The VCLT began life as a series of draft Articles prepared by the International Law Commission. The final draft articles were tabled at the UN conference of Diplomatic Intercourse and Immunities in 1961 and the Convention is a result of that conference with the purpose which recalls that the Charter of the United Nations (1945). It incorporates clearly established rules and fills in gaps where international practice is uncertain or inconsistent. The immunity should prevent foreign and diplomats to respect the laws and regulations of the receiving state, as well as a duty not to interfere in the internal affairs of that state.

With the widespread pattern of acceptance of the convention means the most of the provisions form part of customary international law.

The preamble of Vienna convention reflected the international concern of giving unlimited immunity and establishes four categories of diplomatic personnel, with different levels of immunity allotted to each. The diplomatic agent is the head of the mission or a member of the diplomatic staff of the mission. They are completely immune from criminal and civil jurisdiction. They are, however, subject to local jurisdiction for certain private acts.

Immunities Relating To The Person

The operative provisions begin with Art 29 which proclaims the person of diplomatic agent to be inviolable and he may not be detained or arrested. Art. 30(1) provides for the inviolability of the private residence of a diplomatic agent, while Art. 30(2) provide that his papers, correspondence and property are inviolable. In respect of criminal jurisdiction, the agent will enjoy complete immunity in the receiving state and in case of serious offences, it will be appropriate for the receiving state to have the individual declared persona non grata under Art 9. Article 31 provides that the diplomatic agent will enjoy immunity in respect of civil jurisdiction save in respect of three specific areas.

Immunities In Respect Of Property

As indicated above one of the cardinal provisions of the convention is the inviolability of the mission. Such inviolability extends to any property thereon and the means of transport of the mission. Thus, Art 22(3) provides that means of transport shall be immune from search, requisition, attachment or execution. Further, Art 24 provides that the archives and documents of the mission shall be inviolable at any time and whenever they may be. The protection accorded by Art 24 is an important consideration where libel proceedings are bought founded in an internal embassy document; the normal approach is either to regard the document as subject to absolute privilege or to rule that the entire dispute is non-justifiable for reasons of international comity

Four: ABUSES OF DIPLOMATIC IMMUNITY

Diplomatic immunity, traditionally a fundamental principle of customary international law, originated to protect representatives of foreign states. But recent events have shown an unfortunate tendency on the part of diplomats to disregard the law of the receiving state and invoke their diplomatic to escape liability. Such abuses have caused hindrances in smooth functioning of the receiving states leading to the violation of human rights.

Applicable provisions

The convention provides few provisions which apply when immunity is abused.

Art. 29 provide that the person of the diplomat shall be inviolable and that the diplomat is not liable to any form of arrest or detention. Art. 31 exempts the diplomat from the criminal jurisdiction of the receiving State, though a diplomat can be tried in the receiving state if her immunity is waived. Under Art. 32, however, only the sending State may waive immunity, and the waiver must always be express. Art. 41, requires that the diplomat respect the laws and regulations of the receiving becomes unenforceable due to the previous three provisions of the Convention. These immunities that international law grants to diplomats enable a small though significant number of diplomats to disregard the law.

Recent Examples

-In Al-Adsani v U.K, The European Court of Human Rights held that the assertions of torture and human rights violations did not require U.K to allow a case to proceed against Saudi Arabia, because International Human Rights did not override traditional State immunities.

– 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 also contained Israeli mercenaries who had helped in the kidnapping. The Nigerian government refused to cooperate, and again, all Britain could do was expel the diplomats involved with the kidnapping. Two members of the Nigerian High Commission in London were expelled, and one of the kidnappers sentenced to 12 years of imprisonment. In 1997, Georgian ambassador Gueorgui Makharadze, driving with a blood alcohol content of .15, caused an accident in which four were injured and one 16-year-old girl was killed. A similar incident occurred in 2001 when a Russian diplomat assigned to Canada ran over two pedestrians, injuring one and killing the other. In both cases, the perpetrators were eventually brought to justice, though their diplomatic statuses did cause their situations to become something of impeded, drawn out processes.

Violation Of Human Rights

An early understanding of human rights will be confined to the area of war and destruction. Over time, Human rights have gained much popularity and are ever expanding. Since World War II, the tragic events have led to the development of human rights in a coherent and recognizable manner.

The clash between Human Rights and Diplomatic Immunity is apparent from the very fact that unless a punishment is deterred on the person committing the crime, there will be no fear not to do so. There are basic rights that have been violated in the past by diplomats. Such rights include Right to life, Slavery, rights of child and Security of life etc.

Relevant international instruments, right from the end of World War-I and the Versailles Treaty, The Nuremburg Charter and Nuremburg Principles after World War-II, the states of ICTY, ICTR, ICC and various hybrid tribunals, the Genocide Convention, the Convention against torture and others illustrate state practice and Opinio Juris indicating that there exists a rule of customary international law which removes immunity in case of grave breaches of International Law.

Pinochet’s Case

Facts

A military coup was led by General Augusto Pinochet led a 1973 wherein the democratically elected. Chilean President Salvador Allende was overthrown. According to a national truth and reconciliation commission, thousands of people were killed or forcibly moved out during Pinochet’s dictatorship. Thousands more were tortured or exiled. On 16 October 1998, an international warrant for the arrest of Senator Pinochet, was issued by a Spanish. Magistrate and sent to the British authorities. On the same day, a magistrate in London issued a warrant to arrest Pinochet in accordance with the Extradition Act, 1989. Consequently, Pinocet’s lawyers made applications to the Divisional Court for judicial review to quash the warrants. The main ground was that a warrant of arrest should not have been issued against him because as a former head of State he had immunity under the State immunity Act 1978.

The Divisional Court of the Queen Bench Division quashed the decisions of the magistrates to issue. On an appeal, the majority of the House of Lords held inter alia that the crimes of torture and hostage-taking fell outside what international law would regard as functions of a head of State (immunity rationae materiae) and thus the applicant’s status as former head of State did not confer immunity from extradition proceedings in respect of crimes charged against him.

Later, Pinochet’s lawyers lodged an application to the House of Lords to set aside its decision( Pinochet I) because Lord’s Hoffmann to disclose that he was a director of Amnesty International, which was granted the status of an intervener in the case. Therefore, the appeal from the Queen Bench Divisional Court had to be reheard (Pinochet II). Later, A different panel then gave a different final decision (Pinochet III).

As a result, a panel of seven law Lords ruled that the offences of torture and conspiracy to torture were extraditable crimes and that Pinochet had no immunity from prosecution for them by claiming immunity rationae materiae and thus could be made subject to extradition proceedings. On 15 April 1999, the Home Secretary decided that he would proceed with the extradition proceedings. However, he reversed this decision in March 2000, due to Pinochet’s health, specifically his mental fitness to stand trial. Pinochet returned to Chile On March, 2000.

Impact Of The Case

The immunity of a Head of State has been accepted as a well-established principle of customary international law. This decision seems to have changed the legal position. After the House of Lords decision, a number of countries have tried to follow the same path. Inspired by the Pinochet precedent, victims of human rights violations in Chad instituted criminal proceedings against former leader Habre in Senegal and Belgium. The Defence and the Complainant in the Taylor case took a great deal from this decision as far as difference in private acts and official acts were concerened.

Arrest Warrant Case

This case is related to an international arrest warrant in absentia issued in April 2000 by an investigating judge against Abdulaye Yerodia Ndombasi, Congo’s Minister for Foreign Affairs. The warrant accused Yerodia of crimes against humanity and grave breaches of the 1949 Geneva Conventions and their Additional Protocols, for speeches addressing racial hatred allegedly inciting the massacre of Tutsi tribe in 1998. The arrest warrant was circulated internationally through Interpol. Belgium asserted that it was exercising its universal jurisdiction to try international crimes, and Belgian law did not recognize any special immunities arising from a person’s capacity as a foreign official. Congo in turn protested the arrest warrant’s validity under international law, and consequently brought proceedings against Belgium in the ICJ. The Court decided that the issue and the international circulation of the disputed arrest warrant had failed to respect the immunity from criminal jurisdiction and inviolability which Mr. Yerodia enjoyed under international law. The world court clarified the scope of immunity enjoyed by minister of foreign affairs. The Court accordingly concluded that the issue of the warrant had constituted a violation of an obligation of Belgium towards Congo.

Impact Of The Case

The House of Lords in Pinochet case made a landmark decision abrogating immunity under international law as a former Head of State. On the other hand, the ICJ in Arrest Warrant case denied Belgium’s claim on the specific ground that incumbent Ministers for Foreign Affairs were immune from criminal suit abroad, notwithstanding allegations of having committed “war crimes” or “crimes against humanity.” The judgment is highly criticized as in fact, the most serious international crimes (such as genocide, war crimes and crimes against humanity) are jus cogens crimes.The weakness in the reasoning of the majority opinion in the Arrest Warrant case appears to be that it entirely ignores the jus cogens character of those heinous international crimes and at the same time raises the status of the immunity of State officials to an unwarranted height.

Conclusion

The majority of the international community interprets the principle of diplomatic immunity as an attempt to ensure protection to diplomats as well as diplomatic relations. The immunity protects the violators from punishment for failing to obey the law of receiving state. The Vienna Convention 1961 provides diplomats with certain immunities and privileges which are necessary to perform the functions in foreign land without hindrances. But, in the present scenario the international community must seriously rethink this policy because diplomats abuse these privileges by committing heinous international crimes under the blanket of immunity which is harmful for the international society at large.

Abuse of diplomatic immunity sometimes leads to loss of faith in the international system as a whole and calls for unilateral measures in the form of domestic legal reforms to tackle abuse. To prevent these abuses amendments should be done in the Vienna convention which will reasonably restrict the immunity in case of participation in acts of state terrorism by diplomat, inviolability of the diplomatic bag, international crimes and waiver of immunity by the sending states in such cases.

Law of Universal jurisdiction should be applicable on the diplomats also to prevent international atrocious crimes to protect the interest of the society as done in Pinochet’s case. If diplomat is accused of such crimes, whether they were committed prior to his office or while he was in office, he may legitimately be subject to criminal .jurisdiction before an international court or a national court provided that that court can assert jurisdiction over him under international law.

Hence, it can be concluded by saying that law prevails over diplomats and they do not have license to break laws. The immunities and privileges should be restricted to prevent the abuses of such immunities for the advantage of the international society.

Bibliography

Books:

C.Wilson, Diplomatic Privileges and Immunities, p 3 (1967) , University of Arizona Press

Chittharanjan F. Amerasinghe, Diplomatic Protection, Oxford University Press, Newyork, (2008)

Denza, Eileen, Diplomatic Law( commentary on..),3rd ed, OxfordUniversity Press, New York, (2008)

E. Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Oceanis) (1976)

Robert Cayer, International Criminal Law and Procedure p. 422

Sinha Manoj, Implementation of Basic Human Rights, Manak Publications,(1999)

Stephen P. Marks, The Hissene Habre Case: The Law and Politics of Universal Jurisdiction, in UNIVERSAL JURISDICTION, 131 (Stephen Macedo, ed., 2004).

Dr. S.K. Kapoor, International law and Human Rights (2007) Central Law Agency, 16th Edition.

Dr. H.O. Agarwal, International law and Human Rights (2006) Central Law Publication, 14th Edition.

Malcolm N. Shaw, International Law (2003) Cambridge University Press, 5th Edition.

I.A. Shearer, Starke’s International Law (1994) Oxford University Press, 11th Edition.

Articles:

Comment, Diplomatic Immunity: A Proposal for amending the Vienna Convention to Deter violent Criminal Acts, 5 B.U Int’l L.J. 177, 203-04 (1987)

D. Akande, International law immunities and the International Criminal Court, Am’J Int’l Law 7, (2004).

Dinah Shelton, Remedies in International Human Rights Law, 2nd Ed., OUP, 2005, p. 34

Andrea Bianchi, Immunity versus Human Rights: The Pinochet’s Case, EJIL (1999)

A New Regime of Diplomatic Immunity: the Diplomatic Relations Act of 1978, 54 TUL. L. Rev. 667-72 (1980)

The Times (London), July 7, 1984 at 1, col. 2.

Cases:

Arrest Warrant of 11 April 2000 (Congo v. Belgian) [2002 ICJ REP. 121]

Al-Adsani v U.K,[Eur Ct. H.R, judgment of 21 Nov. 2001]

Prinez v. Federal Republic of Germany [26 F.3d 1166(1994)]

Tachino v. Mugabe,[169 F. Supp 2d 259(2001)].

Ghosh v. D’Rozario (1963) 1 QB 106.

Shearson lehman v. Maclaine Watson[ (No 2) (1988) 1 WLR 16]

Fayed v. Al Tajir [(1988) 1 QB 712]

R. v. Bow Street Metropolitan Stipendiary Magistrate & Others, Ex parte Pinochet Ugarte [1998] 4

All ER 897.

R. v. Bow Street Metropolitan Stipendiary Magistrate & Others, Ex parte Pinochet Ugarte [2000]1 AC 61

R. v. Bow Street Metropolitan Stipendiary Magistrate & Others, Ex parte Pinochet Ugarte (No. 2)

[2001]1 AC 119

R. v. Bow Street Metropolitan Stipendiary Magistrate & Others, Ex parte Pinochet Ugarte (no 3) [2000] 1 AC 147.

Documents:

‘Dugard, First Report on Diplomatic Protection.’ [(ILC), UN Doc. A/CN4/ 506 5 ff]

Vienna Convention on Diplomatic Relations [Apr 18, 1961, 23 U.S.T 3227, T.I.A.S. No. 7502, 500 U.N.T.S 95] (Hereinafter, The Convention)

AEF Sandstrom, Special Rapporteur, Report on Diplomatic Intercourse and Immunities,[ UN Doc A/CN 4/91] at pp 11-13.

Diplomatic Crimes Legislation: Hearings Before the Senate Committee on Foreign Relations, 100th Cong., 1st Sess. 102 (1987)