Why diplomats are above domestic law
Publication date: Monday, 10th April, 2006
By Solomon Mucwa
THE allegations against John Ngarambe, the First Secretary at the embassy of Rwanda in Uganda, invite an explanation of the the doctrine of diplomatic immunities. Countries continue to respect the doctrine because representatives of a state (diplomats) can only carry out their diplomatic functions satisfactorily if they are free from pressure, whether legal, physical or moral, that can be imposed on them by the state to which they are accredited.
In A Diplomatic Hand Book, B. Sen gives three theories that explain the doctrine of diplomatic immunity:
- Exterritoriality Theory: A diplomatic Mission in theory is outside the territory of the receiving state and represents a sort of extension of the territory of the sending state. This is why the municipal (domestic) law cannot be applied to diplomats.
- Representative Character: As a representative of a sovereign state, a diplomat owes no allegiance to the state in which he is accredited.
- Functional Necessity: The immunities are granted to diplomats because they may not exercise their functions perfectly without them.
Therefore, diplomatic immunities apply both to the diplomatic Mission, its functions and to the individual. The following principles in the 1961 Vienna Convention have been accepted by most United Nations member states.
- A Mission and its functions. This offers protection against interference with a diplomat’s security, peace and dignity. The provision of security is an obligation of the receiving state.
- Immunity of residence: State agents of the receiving state should not enter official property and residence of diplomats without permission from the head of the Mission.
- Immunity from civil and criminal jurisdiction. A diplomat can not and should not be arrested or tried under the jurisdiction of the receiving state for any crime which he or she has allegedly committed, and he or she can not be subjected to a civil suit.
- Other immunities to diplomats include the right to hold religious services of their own faith at their embassy, right to travel unmolested through a third state to their destination, and the right to exemption from custom duties for goods used or consumed by diplomatic personnel. In addition, a diplomatic bag is inviolable. This means the bag may not be opened or detained.
Does the above insight therefore mean that diplomats can commit crime at will? No! They are exempt from criminal, civil and administrative jurisdiction of the receiving state. However, this may be waived by the sending state. The receiving state also has the discretion to declare any member of the diplomatic staff of a Mission persona non grata (unwanted person). This may be done at anytime and there is no obligation to explain such a decision. However in most cases states do quietly give explanations. In these situations, the sending state, as a rule, would recall the person or terminate his/her functions with that given Mission.
In general, diplomats are under obligation to respect the laws of the receiving state, for instance to pay their debts, follow traffic rules, etc. Thus they should not act in a manner which is incompatible with their diplomatic status.
But if a diplomat breaks any of the laws, he or she can not be arrested or detained by agents of the receiving state and can not be tried, sued or made to make a statement with police or testify before the state. The receiving state can only seek a waiver of immunities from the sending state in order to arrest the diplomat. If the waiver is not granted, the receiving state can then declare the diplomat persona non grata to see him out.
Therefore, immunity does not imply complete exemption from prosecution but offers a procedural protection from the enforcement process in the receiving state.
The writer is a lecturer at Makerere University
This article can be found on-line at: http://www.newvision.co.ug/D/8/459/492220
© Copyright 2000-2010 The New Vision. All rights reserved.