Diplomatic World 67

DIFFERENT WAYS
FOR DIPLOMATIC IMMUNITY TO END
Throughout the years there have been a number of incidents
regarding diplomats who violate the laws in receiving states.
(For example: a Chinese consul who was caught drunk driving 2 ,
an Estonian consul who collected intelligence incompatible with
his diplomatic status 3 , the murder of Yvonne Fletcher when she
The question arises as to what courses of action are available
if a foreign diplomat commits a mistake or an infringement, or
even a crime, in the host state. Of course, where possible, it is
recommended to try to find an amicable solution. If not, there are
various possibilities. 9
Overall, a waiver of immunity has been unusual, certainly when it
comes to criminal cases. 17 Although, Zambia quickly waived the
immunity of an official at its London embassy who was suspected
of drug offences in 1985. 18
When the sending state consents with the waiver of immunity, it
means that the receiving state may exercise its jurisdiction. 19 This
way the foreign diplomat can be tried in court for the offences
he/she committed. Asking to grant a waiver of immunity can be
a better option than declaring a diplomat persona non grata 20 , as
this can make the relationship between two states go sour. 21 A
difference must be made between a waiver of immunity from ju-
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was fatally wounded by a shot fired from the Libyan embassy by
risdiction and a waiver of immunity from execution. 22 This means
an unknown gunman 4 ).
In principle, the inviolability prevails the national law of the host
that if a sending state waives the immunity from jurisdiction, the
state. But article 41 of the Vienna Convention is strengthened
judgement of the court following this waiver cannot be enforced
Not all victims and/or relatives of the victims were sure to get
by additional rules, designed to prevent abuse of immunities,
without a separate waiver for the immunity from execution. 23
Most of the time diplomatic agents follow this with due diligence,
AD-BillietCo.indd 2
compensation or get justice because of the diplomatic immunity
privileges and/or inviolability. Those rules provide administrative
but there have been circumstances where diplomats have
and inviolability of the diplomats. Diplomats are internationally
protected individuals according to Article 1 of the Convention on
the Prevention and Punishment of Crimes against Internationally
and deterrent restrictions. The administrative restrictions can be
found in articles 4 to 11 of the Vienna Convention on Diplomatic
relations. Those rules can be used by the host state to counter
PERSONA NON GRATA
crossed the line. 26
When a diplomat has committed an offence abroad, the courts
Protected Persons, including Diplomatic Agents.
the abuse of inviolability and immunity by the diplomatic agents
In the case of “waiver of immunity”, the host state is dependent
are competent to hold a national accountable when this is an
on their territory.
on the sending state. Persona non grata refers to a foreign per-
offence in the sending and the receiving state. 27 The purpose is
This article aims to offer an introduction to the limits of diplomat-
son who’s remaining or entering in a country is prohibited by that
to make sure diplomatic agents who are recalled to the sending
ic immunity.
We will further discuss three main ways that diplomatic agents
country. The person can then no longer function as a diplomat
state can’t prevent being prosecuted as they have no immunity
can ‘lose’ their immunity.
on the territory of the receiving state, and must return to the
in their home country; although sending states are not obliged to
DIFFERENCE BETWEEN IMMUNITY AND
INVIOLABILITY
WAIVER OF IMMUNITY
sending state. A country can declare a member of a diplomatic
staff persona non grata at any time and without having to explain
its decision. 24
prosecute their diplomatic agents. 28
1
Both law students at the Catholic University of Leuven,
expressing particular thanks to Billiet & Co, a Brussels -based
There is a distinct difference between immunity and inviolability.
First of all, waiver of immunity is one of the common features of
This instrument can be used in case of abuse of the special
law firm specialized in legal services for diplomatic missions.
This difference is important when it comes to prosecuting diplo-
international immunity. The modalities in which a waiver of immu-
protection position. A diplomat who abuses his immunity- either
2
K. SARAH, “ Chinese diplomat in Gwangju denied immunity in
matic agents and holding them accountable for their acts. Immu-
nity can be asked and granted depends on the kind of immunity
for personal gain or to jeopardise the welfare and security of the
DUI case”, joins, Chinese diplomat in Gwangju denied immuni-
nity and inviolability don’t go together automatically. For exam-
and the person who’s asking the waiver of immunity. 10 Article
host state- can be declared persona non grata and, if necessary,
ty in DUI case (joins.com)
ple, in spite of article 29 of the Vienna Convention of Diplomatic
32 of the Vienna Conventions gives the circumstances in which
can even be arrested or deported. The sending state is obliged
3
X., “Estonian consul Mart Latte declared persona non grata by
Relations (“VCDR”), inviolability can be subject to exceptions, but
immunity can be waived.
to recall the diplomat, but the host state still doesn’t have the
Russia”, The Baltic Times, Estonian consul Mart Latte declared
immunity of criminal jurisdiction remains in place even in those
authority to prosecute him.
persona non grata by Russia (baltictimes.com)
exceptional cases. 5 Inviolability is the duty of a state to hold itself
In article 32(4) VCDR we can see that immunity from criminal
4
S. TENDLER, “Fletcher, Yvonne Joyce”, Oxford DNB, Fletcher,
from taking coercive measures towards certain persons. 6 When
jurisdiction is broader, which means diplomatic agents have
When a diplomat is declared persona non grata by the receiv-
Yvonne Joyce (1958–1984), police officer | Oxford Dictionary of
a person only enjoys inviolability, but no immunity, a prosecu-
more protection regarding criminal cases. If a sending state
ing state, this will often result in a countermeasure being taken
National Biography (e-bronnen.be)
tion and even a conviction seems possible to the extent that it
wants to ask for a waiver of immunity for a specific person, then
by the sending state based on the principle of reciprocity. For
5
Int. Ger. 24 mei 1980, Teheran Case, § 86; E. DENZA,
can be taken without coercive measures. 7 When a person only
she needs to do this expressly. 11 But a diplomatic agent cannot
example, Sweden banned a Russian diplomat a few years ago
“Diplomatic Law: A Commentary on the Vienna Convention on
enjoys immunity without inviolability, the court will declare the
invoke his immunity from jurisdiction with respect to a counter-
for violating the Vienna Convention on Diplomatic Relations. In
Diplomatic Relations”, British yearbook of international law,
case inadmissible and no trial can take place. But this doesn’t
claim directly related to the main claim , when he/she starts legal
response to Sweden’s persona non grata declaration, Russia
1999, 218-220; J. SALMON, Manuel de Droit Diplomatique,
mean that no procedural acts and acts of investigation in criminal
proceedings .12
did the same to a Swedish diplomat in Moscow as a counter-
Brussels, Bruylant, 1994, 292-296.
procedures can take place. Immunity often is temporary so those
measure. 25
6
E. DENZA, “Diplomatic Law: A Commentary on the Vienna
acts can be valuable in the future.
The waiver is done by the head of the mission, who is deemed
Convention on Diplomatic Relations”, British yearbook of
The diplomatic agent who has the nationality of the receiving
state or has his permanent residence there, enjoys inviolability
only on criminal and executive level for official operations during
to have the authority 13 , or by the minister of foreign affairs of the
sending state. 14 Also important to note is that waiver of immunity
does not belong to the individual concerned, but to the sending
state who can use it for her benefit. 15 Immunity in itself is the
PROSECUTING UNDER THE JURISDICTION OF
THE SENDING STATE
international law, 1999, 112.
7
Article 31 a-c VCDR.
8
P. LAMBERT, “Diplomatic and parliamentary immunity” ​in X.,
Postal Memorialis - Lexicon criminal law, criminal procedure
the execution of his function, unless there are additional privileg-
right of the sending state, so only the sovereign can waive the
For one person to have immunity, means to have the duty to
and special laws, Brussels, Ced. Samsom, 1987, D85(03) 87.
es and inviolabilities granted by the host state. 8
immunity of its diplomatic representatives. 16
respect the laws and regulations of the receiving state.
162 163