GA 3: The World Issue Report

Issue Questioning the use of diplomatic immunity

Student Officer Chair Amin Houta

Introduction

In 1987, Margaret Thatcher, the Prime Minister of Great Britain, complained to the House of Commons that diplomatic immunity had obstructed the arrest and prosecution of the husband of a US diplomat that was accused of sexual offense against

1 a young girl.​ ​ In 1981, a man accused of at least 15 rape at knifepoint was arrested in New York City and was positively identified by two victims. He was then released and charges were dropped due to the fact that he was the son of Ghana's ambassador to the United Nations at the time.​2 According to reports, the man spent

3 45 minutes in custody and left the police station laughing.​ ​ November, 1982, a student allegedly shot and wounded bouncer in Washington D.C. Upon being identified as the son of the Brazilian ambassador at the time he was immediately released and left the United States. The student was charged with assault once before but charges were dropped and he was allowed to remain in Washington D.C. on the grounds of diplomatic immunity.​4 There is, understandably, much strife that is caused by the occurrence of such events and, undeniably, most people do not comprehend why they have to tolerate the existence of such behavior while those responsible generally get away with it with little consequences. Countries around the world, generally at the call of their enraged citizens have suggested the review and reconsideration of diplomatic immunity and whether or not there are any instances that might indirectly lead to the violation of basic human rights as illustrated in the Universal Declaration of Human Rights.​5

1 Blum, Andreas-Michael. “Why and How Is Diplomatic Immunity Abused? Factors Influencing the Countermeasures.” ​ GRIN​ , www.grin.com/document/353367#:~:text=The abuse of diplomatic immunities,committing crimes and using violence.​ 2 Ibid 3 Ibid​ 4 Ibid ​ 5 “Universal Declaration of Human Rights.” United Nations, United Nations, ​ ​ ​ www.un.org/en/universal-declaration-human-rights/. Relevant Sustainable Development Goals

The Sustainable Development Goals (SDGs) are 17 international goals and targets,

6 outlined in the UN’s agenda in 2015​ ,​ to be completed by 2030. They focus on the most pressing issues affecting individuals, communities, and the world, and are the major blueprint for the United Nations’ work. The sustainable development goals that relate to the issue illustrated within this report are as follows:

SDG 16 - Peace, Justice and Strong Institutions

The United Nations, through SDG 16, aims to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective,

7 accountable and inclusive institutions at all levels.”​ ​ In order to maintain accountability for diplomats, consuls and other governmental figures it is paramount to discuss whether the withdrawal or alteration of the right to diplomatic immunity will be beneficial to the achievement of this SDG.

Relevant SDG Targets

16.3: Promote the rule of law at the national and international levels and ensure equal access ​ to justice for all 16.5: Substantially reduce corruption and bribery in all their forms ​

SDG 17 - Partnership for the Goals

Through SDG 17 the UN aims to “Revitalize the global partnership for sustainable

8 development.”​ ​ As the basis of the United Nations, this SDG is what allows and promotes the union and cooperation between nations in order to solve issues that arise in the world. In order to solve these issues, partnership, trust and cooperation between countries is paramount. Diplomatic Immunity is often said to both aid and harm this goal.

6 “Goal 16 | Department of Economic and Social Affairs.” United Nations, United Nations, sdgs.un.org/goals/goal16. ​ ​ ​ 7“Peace, Justice and Strong Institutions - United Nations Sustainable Development.” United Nations, United Nations, www.un.org/sustainabledevelopment/peace-justice/#tab-eb030c43e0900c3690b 8 “Goal 17 | Department of Economic and Social Affairs.” United Nations, United Nations, sdgs.un.org/goals/goal17. ​ ​ ​ Defining Key Terms

Diplomatic Immunity:

(n) a privilege granted to diplomats in which they are exempt from taxes, detention and criminal persecution, granted by the state in which they are residing in.​9

Diplomat:

(n) a representative of a state appointed by a national government to conduct official negotiations and maintain political, economic, and social relations with another country or countries.​10

Consul:

(n) an official representative of a state assigned to live in a foreign state in order to protect the interest of the state’s citizens residing there.​11

Customary Law:

(n) an unsigned and unratified form of legal custom in which a practice has been commonly accepted by law and assumed to be binding.​12

State Sovereignty:

(n) the concept that states are in complete and exclusive control of all the people and property within their territory.​13

General Overview

Diplomatic Immunity

The 1961 Vienna Convention on Diplomatic Relations defines the concept of diplomatic immunity as exemptions from different legal obligations and procedures. In extreme cases, diplomatic immunity can offer protection from criminal, civil and

9 “Diplomatic Immunity.” Embassies, Consulates and Other Representations | Government.nl, Ministerie Van Algemene Zaken,​ 12 Dec. 2013, www.government.nl/topics/embassies-consulates-and-other-representations/diplomatic-immunity.​ ​ 10 Who Is a Diplomat? - National Museum of American Diplomacy.” U.S. Department of State, U.S. Department of State, 6 ​ ​ ​ Aug. 2020, diplomacy.state.gov/diplomacy/who-is-a-diplomat/. 11 Ibid. 12 “Access Information on Multilateral Environmental Agreements.” InforMEA, www.informea.org/en/terms/customary-law. 13 Ibid.​ ​ ​ administrative jurisdiction. The immunity may offer exemptions from the receiving state’s dues and taxes, as well as exemption from social security provisions. Furthermore, any form of public service such as being subpoenaed to testify in court is not required during the extent of the diplomat's term within the foreign state.​14 Diplomatic immunity is derived from the concept of state sovereignty in which no foreign state has the jurisdiction to interfere in another state’s political matters or domestic affairs. Diplomatic immunity is a means to promote state equality and self-government, considering that diplomatic figures are considered to be representatives of a sovereign state, the theory of “personal representation” is assumed, through the notion that the representative should be treated as if it was the sovereign himself who was conducting the diplomacy.​15

16 Prior to the 1961 Vienna Convention on Diplomatic Relations,​ ​ the law was 17 considered customary with some attempts to clarify certain rules internationally.​ ​ The 1961 Convention systemized certain existing customary diplomatic laws and resolved conflicting

18 state practice as well as introduced additional rules​ ​ while understanding that customary

19 international law continues to govern areas that were left untouched.​ ​ With over 170 state parties involved in the Vienna Convention on Diplomatic Relations, the Convention is regarded as one of the most successful products of the United Nations’ legislative process and is widely accepted as the applicable law.

Abuse of Diplomatic Immunity

Whilst diplomatic immunity is generally used as a form of protection from simple matters such as taxes, traffic violations and subpoenas, there have been several, more extreme instances in which diplomatic immunity protected dissidents from grave violations of human rights. For instance: In 1984, Libyan nationals allegedly fired and killed a British police constable and several other victims through the windows of the Libyan embassy in London. Due to diplomatic immunity, the suspect could not be prosecuted or punished by the British legal system. Furthermore, the alleged shooter could not be forced to pay compensation to the

14 “Access Information on Multilateral Environmental Agreements.” InforMEA, www.informea.org/en/terms/customary-law. ​ ​ ​ 15 Chun, Rene. “Dodgy Diplomats: How Envoys Misuse Their Immunity.” The Guardian, Guardian News and Media, 2 Dec. 2019,​ www.theguardian.com/us-news/2019/dec/02/envoys-diplomatic-immunity-misuse-crime.​ ​ 16 Blum, Andreas-Michael. “Why and How Is Diplomatic Immunity Abused? Factors Influencing the Countermeasures.” ​ GRIN, www.grin.com/document/353367#:~:text=The abuse of diplomatic immunities,committing crimes and using ​ violence. 17 Ibid 18Universal​ Declaration of Human Rights.” United Nations, United Nations, ​ ​ www.un.org/en/universal-declaration-human-rights/. 19 Osborne, James S. Diplomatic Privilege and Immunity: Abuse and Exploitation by International Terrorists. 1985. ​ ​ ​ victims' families. It has even been considered that the fact that diplomatic immunity was available to the nationals could have induced the person to shoot in the first place. After nine days of negotiations, the 30 Libyans in the embassy were escorted to the Airport and boarded a Libyan airliner to Tripoli, not before their wives were reported to have made final shopping trips to London's big department stores. This instance is a direct violation of the victim’s right to life. Many instances, including many recent ones, of "diplomatic slaves", have been reported. In one case, a Bolivian maid was kept as a ‘prisoner’ by an Egyptian diplomat in the United States. She was forced to work "..interminable hours every day, seven days a week, for little or no wages, made to sleep on floors and eat table scraps, and sometimes beaten or

20 sexually abused. "​ ​ Her passport was furthermore kept by the diplomat and she was denied 21 medical treatment when she developed a disease causing bleeding and infections.​ ​ In another case, a Filipino maid accused a Jordanian diplomat and his wife of mistreating her, forcing her to work constantly for 50 cents an hour, locking her in their Virginia home, and

22 withdrawing her passport and belongings so she could not escape.​ ​ In contrast, where diplomatic immunity is not available, justice can be served and human rights are respected, illustrated by the story of two women kept as slaves in the London home of a Princess from

23 the Kuwaiti Royal family.​ ​ One of them told the police that she was '..whipped, kicked,

24 beaten and starved.’​ ​ The Princess tried to claim diplomatic immunity to which she was not entitled. The Princess was then found guilty and was sentenced to six months in prison suspended for two years, and was ordered to pay two thousand pounds in fines, costs and compensation to the maids. Timeline of Events

20 Jones, Claire. “Yvonne Fletcher: The 35-Year-Old Vow to a Dying Friend.” BBC News, BBC, 11 Nov. 2019, ​ ​ ​ www.bbc.com/news/uk-50334287. 21 Ibid. 22 Ibid. ​ 23 Alberto M. Alfaro, Filipino Maid Sues Envoy For Slavery, FILIPINO REPORTER, February 9, 1995 24 Ibid. Date (dd/mm/yy) Event

18/04/1961 The Vienna Convention on Diplomatic Relations was signed in Vienna, Austria in order to protect the security of diplomatic missions and uphold the sovereignty of nation states.​25

24/04/1963 The Vienna Convention on Consular Relations was signed in Vienna, Austria to define the framework for consular relations between sovereign states.​26

31/07/1964 The Diplomatic Privileges Act began in the United Kingdom giving effect to the Vienna Convention on Diplomatic Relations and codifying the rules established wherein.​27

dd/11/1982 A 23 year old student allegedly shot and wounded bouncer in Washington D.C. Upon being identified as the son of the Brazilian ambassador at the time he was immediately released and left the United States.​28

17/04/1984 British Constable Yvonne Fletcher was shot and murdered, allegedly by thirty Libyan nationals in the embassy. All charges against the Libyans were dropped on the basis of Diplomatic Immunity.​29

17/10/2000 The Democratic Republic of Congo (DRC) filed an application in the International Court of Justice (ICJ) against Belgium regarding the dispute on the arrest warrant issued by Belgium against the Congolese minister of foreign affairs, Mr. Abdoulaye

25 “UN, United Nations, UN Treaties, Treaties.” United Nations, United Nations, treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iii-3&chapter=3&lang=en.​ ​ ​ 26 UN, United Nations, UN Treaties, Treaties.” United Nations, United Nations, ​ ​ ​ treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-6&chapter=3. 27Participation, Expert. “Diplomatic Privileges Act 1964.” Legislation.gov.uk, Statute Law Database, 31 Dec. 1978, ​ ​ www.legislation.gov.uk/ukpga/1964/81/contents. 28 Osborne, James S. Diplomatic Privilege and Immunity: Abuse and Exploitation by International Terrorists. 1985. ​ ​ ​ 29 Jones, Claire. “Yvonne Fletcher: The 35-Year-Old Vow to a Dying Friend.” BBC News, BBC, 11 Nov. 2019, ​ ​ www.bbc.com/news/uk-50334287.​ Yerodia Ndombasi.​30

27/08/2019 Anne Sacoolas, the wife of a CIA agent stationed in the Royal Air Force base in Northamptonshire, was driving on the wrong side of the road when she collided with a 19 year old Harry Dunn who was riding a motorcycle.​31

Involved Parties

USA

The United States of America is considered to have a very varying stance on the case of diplomatic immunity, in which they are known to rarely waive the immunity of their foreign diplomats, consuls and citizens abroad. In fact, the last known instance in which the United States of America was known to waive diplomatic immunity for one of its citizens was in 1940 when Tyler Kent, a clerk at the American embassy in London was arrested for spying for Germany. Kent was sentenced to seven years in prison for breaches of the Official Secrets Act after he stole copied communications from Winston Churchill to President Roosevelt and shared them with German intelligence. The trial took

32 place two years before the United States entered World War 2.​ ​ Since then, no American citizen has been known to lose diplomatic immunity.

30 “Latest Developments: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium): International ​ Court of Justice.” Latest Developments | Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) | ​ International Court of Justice, www.icj-cij.org/en/case/121. 31 “Harry Dunn: Anne Sacoolas's​ Diplomatic Immunity in Question, US Court Is Told.” The Guardian, Guardian News and ​ ​ ​ Media, 4 Feb. 2021, www.theguardian.com/uk-news/2021/feb/04/harry-dunn-anne-sacoolass-diplomatic-immunity-in-question-us-court-is-told. 32 Catherine Philp, Diplomatic Correspondent. “Diplomat Row: America Is Always Loath to Hand over Its Citizens.” News | ​ ​ The Times, The Times, 8 Oct. 2019, www.thetimes.co.uk/article/tyler-kent-a-spy-for-the-nazis-was-last-american-to-lose-diplomatic-immunity​ Despite that fact, it is known that the United States, as a noticeable political power, often requires countries that send representatives on diplomatic missions to waive any diplomatic immunities they might have in advance to their entering of the country in the name of national security.​33

UK

Despite enjoying diplomatic immunity as a signatory of both the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, the British public and the House of Commons have brought the concept of diplomatic immunity and the extent of its protection into question, particularly after the death of 19 year old Harry Dunn. According to eye-witness accounts, on the 27th of August, 2019, Anne Sacoolas, the wife of a CIA agent stationed in the Royal Air Force base in Northamptonshire, was driving on the wrong side of the road when she collided with a 19 year old Harry Dunn who was riding a motorcycle. Anne Sacoolas was subsequently questioned then returned to the United States. According to the UK Foreign Office, Ms. Sacoolas had diplomatic immunity and therefore could not be prosecuted over the collision. This led to demands from several bodies, including Prime Minister Boris Johnson, that the United States waive Ms. Sacoolas’ immunity and return her to the UK for prosecution.​34 In 1964, the UK adopted the Diplomatic Privileges Act, to be amended several times in 1971, 1981 and 1991, in which it illustrates and codifies the privileges and immunities that are enjoyed by British diplomats and consuls abroad. Whilst the Diplomatic Privileges Act

33 Ibid. 34 “Harry Dunn: Anne Sacoolas's Diplomatic Immunity in Question, US Court Is Told.” The Guardian, Guardian News and ​ ​ ​ Media,​ 4 Feb. 2021, www.theguardian.com/uk-news/2021/feb/04/harry-dunn-anne-sacoolass-diplomatic-immunity-in-question-us-court-is-told. considers it a way to protect diplomatic missions it is defined primarily as a privilege that can be revoked by order of Her Majesty in cases that are deemed necessary.​35

Democratic Republic of Congo (DRC) On the 17th of October, 2000 the Democratic Republic of Congo filed an application to the International Court of Justice instituting proceedings against Belgium, taking actions against the arrest warrant issued by Belgium against the acting Congolese Minister for Foreign Affairs, Mr. Abdoulaye Yerodia Ndombasi, seeking his detention and subsequent extradition to Belgium for alleged crimes constituting “grave violations of international humanitarian law” after a speech given by Ndombasi against certain minorities in the region.​36

According to the Democratic Republic of Congo’s claims, Belgium’s arrest warrant that was issued on the 11th of April, 2000 was in the direct violation of Ndombasi’s immunity and inviolability and given the nature and purpose of the warrant, its mere issuance constituted a violation of an obligation of Belgium towards the DRC, in that it had failed to respect the immunity which Mr. Yerodia enjoyed as incumbent Minister for Foreign Affairs.​37

Relevant Treaties/Resolutions

- Vienna Convention on Diplomatic Relations of 1961​38

The Vienna Convention on Diplomatic Relations was signed on the 18th of April 1961 in Vienna, Austria in order to protect the security of diplomatic missions and uphold the sovereignty of nation states. While it illustrates the concept of diplomatic immunity it is primarily customary in its implementation and legal basis.

- Vienna Convention on Consular Relations of 1963​39

35 Participation, Expert. “Diplomatic Privileges Act 1964.” Legislation.gov.uk, Statute Law Database, 31 Dec. 1978, ​ ​ www.legislation.gov.uk/ukpga/1964/81/contents.​ 36 “Latest Developments: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium): International ​ Court of Justice.” Latest Developments | Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) | International Court​ of Justice, www.icj-cij.org/en/case/121. ​ 37 Ibid. 38 “UN, United Nations, UN Treaties, Treaties.” United Nations, United Nations, treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iii-3&chapter=3&lang=en.​ ​ ​ ​ 39 UN, United Nations, UN Treaties, Treaties.” United Nations, United Nations, treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-6&chapter=3.​ ​ ​ ​ The Vienna Convention on Consular Relations signed on the 24th of April, 1963, defines a framework for consular relations between sovereign states, protecting the rights and responsibilities of consuls abroad, similar to the Vienna Convention on Diplomatic Relations it was also done in order to protect and uphold the sovereignty of nation states. It codifies many consular practices that originated from state custom and various bilateral agreements between states, similar to the Vienna Convention on Diplomatic Relations, this convention is primarily customary in its implementation and legal basis .

- Diplomatic Privileges Act 1964​40

In 1964, the UK adopted the Diplomatic Privileges Act, to be amended several times in 1971, 1981 and 1991, in which it illustrates and codifies the privileges and immunities that are enjoyed by British diplomats and consuls abroad. Whilst the Diplomatic Privileges Act considers it a way to protect diplomatic missions it is defined primarily as a privilege that can be revoked by order of Her Majesty in cases that are deemed necessary.

Possible Solutions

Whilst not being non-existent, the actual percentage of abuses affecting human rights is relatively small, therefore a complete reconsideration and rewriting of the rules or even a radical reform, may be considered undesirable from certain nation states’ viewpoints, considering the benefits that countries gain in order to help with carrying out diplomatic missions. In order to find solutions, delegates could ask themselves how they might find and devise suitable dispute settlement and reparation mechanisms in order to decrease the need for diplomatic immunity so as to uphold state sovereignty in ways that would not allow for the abuse of immunities or violations of human rights. Other paths one might take is to ensure that the violation of fundamental human rights is minimal, that violations are not without consequence, and that victims are adequately compensated.

40 Participation, Expert. “Diplomatic Privileges Act 1964.” Legislation.gov.uk, Statute Law Database, 31 Dec. 1978, www.legislation.gov.uk/ukpga/1964/81/contents.​ ​ ​ Bibliography

Blum, Andreas-Michael. “Why and How Is Diplomatic Immunity Abused? Factors Influencing the

Countermeasures.” GRIN, www.grin.com/document/353367#:~:text=The abuse of diplomatic ​ ​ immunities,committing crimes and using violence.

“Access Information on Multilateral Environmental Agreements.” InforMEA, ​ ​ www.informea.org/en/terms/customary-law.

Catherine Philp, Diplomatic Correspondent. “Diplomat Row: America Is Always Loath to Hand over

Its Citizens.” News | The Times, The Times, 8 Oct. 2019, ​ ​ www.thetimes.co.uk/article/tyler-kent-a-spy-for-the-nazis-was-last-american-to-lose-diplomati

c-immunity-pnvpz6rft#:~:text=The last time the,arrested for spying for Germany.

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www.theguardian.com/us-news/2019/dec/02/envoys-diplomatic-immunity-misuse-crime.

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