diplomatic immunity my foot

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Diplomatic Immunity My Foot!

By

Lawrence Wesley Mwagwabi

26 May 2012

I read someones Facebook status which read Diplomatic Immunity My Foot! and a blog

article link appropriately linked to it that prompted me to make certain specific clarifications

that would enlighten those who may have been struck by this article. The blog article which

was a story reported in The Star daily, on a sub heading entitled, Venezuelan Diplomat

Accused of Abuse, mentions a staff member of the Venezuelan Embassy filed a complaint

with the Diplomatic Police Unit over an allegation of sexual impropriety by an ambassador

Gerardo Carrillo Silva. The report went on to say that three junior employees working at

Silvas home in Runda have complained over sexual harassment. Furthermore, staff of the

embassy further claimed that the diplomat had acted indecently towards them on diverse

dates and some had been forced to quit their employment after being unable to bear theoffending overtures. For instance, a watchman from Securex Company who had been

guarding the diplomats residence was forced to quit because of the indecent acts towards

him committed on diverse dates. The driver also alleged that he had fallen prey to the

ambassadors overtures. A long serving cook was surprised to see the diplomat stark naked in

the kitchen on December 8, last year. His driver told the police that the diplomat had

attempted to grab him sexually in December but he managed to get away. This list goes on

and on though some staff at the embassy could not substantiate these claims. I guess the

disgust to the Venezuelan diplomat was prompted by the fact that as an ambassador, Silva

enjoys privileges and immunities that are both functional and personal by virtue of the fact

that he exercises the duties of a diplomatic agent and in this case, duties of an ambassador.

It is important to note that the rules regulating the conduct of diplomatic agents are codified

under two conventions: Vienna Convention on Diplomatic Relations (1961) and Vienna

Convention on Consular Relations (1963). If one examines the whole area of diplomatic

relations, relations between states have traditionally been conducted through ambassadors

and staff in a diplomatic mission. Indeed, the growth of trade and commercial intercourse

resulted in the establishment of the office consul.

The field of diplomatic immunities is considered one of the most accepted and

uncontroversial of international law discourse, as it is in the interest of all states to ultimately

preserve diplomatic relations, although not all states act in accordance with this (examplescan be drawn from US Diplomatic and Consular Staff in the Tehran case (and recently the

incident involving demonstrators and invasion of the US and French embassies in Syria).

The person of a diplomatic agent is inviolable (uninfringeable) under article 29 of the Vienna

Convention on Diplomatic Relations and he or she may not be detained or arrested. Indeed,

this principle is the most fundamental rule of diplomatic law and is the oldest rule of

diplomatic law. States recognize that the protection of diplomats is a mutual interest founded

on functional requirements and reciprocity. Thus, receiving states (where diplomatic agents


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are sent to perform their functions as diplomats) are under an obligation to take all necessary

steps to prevent any attack on the person, freedom or dignity of diplomatic agents.

There are regulations in Diplomatic Law that prevent crimes committed against diplomats

and itinerant punishment that should be meted out in event that this occurs. The United

Nation Convention on the Punishment of Crimes against Internationally Protected Persons,

Including Diplomatic Agents was adopted in 1973. This convention provides that state parties

must make attacks upon such persons a crime in domestic law with appropriate penalties and

take such measures as may be necessary to establish jurisdiction over these crimes. State

parties are obligated to extradite or prosecute offenders.

With regards to criminal jurisdiction, diplomatic agents enjoy complete immunity from the

legal system (or domestic laws) of the receiving state (the state where the diplomatic agents

serve their tour of duty), although there is no immunity from the jurisdiction of the sending

state (the home state that has sent them to the receiving state). The provision noted in article

31 (1) of the Vienna Convention on Diplomatic Relations reflects the accepted position under

customary law (it is important to mention here that the Vienna Convention on DiplomaticRelations is a codification of practice of states that became accepted norms in international

relations. Indeed, customary international law or CIL is the historical acceptance of

certain long standing practice by states as legally required. This has been recognized by the

Statute of International Court of Justice as a primary source of international law!). The only

remedy provided to the host state has in the face of offences alleged to have been committed

by a diplomat is to declare him or her persona non grata under article 9 of the Vienna

Convention on Diplomatic Relations.

Under article 31 (1) of the Vienna Convention on Diplomatic Relations diplomatic agents are

immune from civil and administrative jurisdiction of the state in which they are serving

except in three cases: where the action relates to private immovable property situated withinthe host state (unless for mission embassy- purposes); in litigation relating to succession

matters in which the diplomat is involved as a private person (for instance as an executor or

heir); and, with respect to unofficial professional or commercial activity engaged in by the

diplomatic agent. In addition, article 31 (2) of the Vienna Convention on Diplomatic

Relations provides that a diplomatic agent cannot be obliged to give evidence as a witness,

while article 31 (3) of the same convention provides that no measures of execution may be

taken against such a person except in the three cases mentioned under article 31 (1) a, b, and

c and provided that the measures concerned can be taken without infringing on the

inviolability of his/her person or of his/her residence.

Article 39 (2) of the Vienna Convention on Diplomatic Relations provides that immunities

and privileges of a diplomatic agent normally cease when the diplomatic agent leaves the

country or upon expiry of a reasonable period in which to do so. However, by this article

there would be continuing immunity with regards to those acts that were performed in the

exercise of his/her functions as a member of the mission. It therefore follows from this

formulation that immunity would not continue for a diplomatic agent leaving the host country

for any act which was performed outside the exercise of his/her functions as a member of a


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diplomatic mission even though he/she was immune from prosecution at the time. For

instance, in the Former Syrian Ambassador to the German Democratic Republic (GDR), the

German Federal Constitutional Court held that article 39 (2) of the Vienna Convention on

Diplomatic Relations covered the situation where the ambassador in question was accused of

complicity in murder by allowing explosives to be transferred from his embassy to a terrorist

group. He was held to have acted in the exercise of his official functions. It was argued thatdiplomatic immunity from criminal proceedings knew of no exception for particularly serious

crimes, the only resort being to declare him persona non grata. The Court, in perhaps a

controversial statement, noted that article 39 (2) was not binding on the receiving (host) state,

was not binding on third states. Accordingly, the continuing immunity of the former

ambassador to the German Democratic Republic under article 39 (2) of the convention was

not binding upon the Federal Republic of Germany.

Article 32 of the Vienna Convention on Diplomatic Relations (1961) provides conditions for

waiver of immunity of a diplomatic agent. The sending state may waive the immunity from

the jurisdiction of diplomatic agents and others possessing the immunity under the

Convention. Such waivers must be express - see article 32 (2). Where a diplomatic agentwho enjoys immunity initiates proceedings, they cannot claim immunity in respect of any

counter-claim directly connected with the principal (main) claim. Waiver of immunity from

jurisdiction in respect to civil or administrative proceedings is not to be taken to imply waiver

from immunity in respect to the execution of the judgement, for which a separate waiver is

necessary. In general, waiver of immunity has been rare or unusual. While waiver of

immunity in the face of criminal charges is not common, it is routinely sought and

occasionally granted. However, Zambia hastily waived the immunity of an official at its

London embassy suspected of drugs offences in 1985.

Going back to the issue that prompted my writing this piece, there are only three remedies

that can be sought on this matter: Venezuela can end the tour of duty of the ambassador and

deal with this matter within its jurisdiction; Venezuela can waive the ambassadors immunities

so that he can be prosecuted in our courts but this would be rare and in any case the other

diplomatic agents affected by this matter cannot be witnesses in Kenyan court proceedings on

the crime the ambassador is alleged to have committed in Runda; and lastly, Kenya can

declare the ambassadorpersona non grata. Venezuela could do what the Nigerian Ministry

of Foreign Affairs did by recalling its ambassador, Dr. Chijioke Wilcox Wigwe on

allegations of battering his wife in July 2011.

diplomatic immunity my foot

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