Key Points
History of diplomatic immunity
Reason for diplomatic immunity
Diplomatic immunity in New Zealand
Questions are raised regarding diplomatic immunity once again after a Malaysian diplomat allegedly committed sexual assault with intent of committing rape on New Zealand soil. But there are good reasons for the existence of diplomatic immunities. They were not established to give envoys and diplomats special rights beyond the law.
Don’t shoot the messenger
Diplomatic immunity emerged when humans realised it might be better not to shoot the messenger. Early records of such immunities were found in the the Institutes of Manu, an archaic Hindu code that has been dated back to 1500BC . The concept of immunity was also found in correspondence between Ramses III and Hattusili III who recognised the right of messengers to unimpeded passage. The Greeks and Romans both respected certain codes of conduct towards envoys from different city-states, states or empires and these envoys enjoyed certain privileges. In Rome harming an envoy could be a motive to go to war. [1] A modern style of diplomacy appeared in the Italian city-states of the Renaissance. For the first time, an organised diplomatic system was established with permanent envoys sent to other city states as well as to the Pope and to the Holy Roman Emperor. This type of diplomacy spread throughout Europe and it is at this stage that countries started to grant diplomats more than a right to safe passage. During the reformation countries used the doctrine of quasi extra territorium, “as if outside the territory”, to exempt diplomats from both criminal and civil justice. That is not to say however that this custom was always upheld. Napoleon killed a number of British envoys in order to make a statement. It was only at the Vienna convention on Diplomatic Relations in 1961 that diplomatic immunity formally became part of international law. Today, 190 countries have ratified it.
Why we have diplomatic immunity
Diplomatic immunity is necessary because diplomats are considered an extension of their home nation, a symbol of that country in the international arena, and as such, are afforded the courtesy of only being subject to the laws of their homeland. Further, diplomatic immunity affords the protection to diplomats to act independently of the country that they are stationed in, as only then can they do their job completely and represent the views of their home country without controls. It also helps keep our diplomats and their families out of harm’s way. It means that our diplomats are not subject to laws of their host country that would be deemed unacceptable in our society. For example in countries such as Saudi Arabia, homosexuality is an offence punishable by law. Offenders can be imprisoned, chemically castrated or can even face capital punishment. While some more homophobic members of our society may not have a problem with that, our society as a whole does. And for those not swayed by this example, drinking alcohol is also illegal in Saudi Arabia and can be punished by public lashing.
Without diplomatic immunity, diplomats as official representatives of states could be endangered. Imagine a scenario where a diplomat from country X is send to country Y. For the purposes of this scenario, the diplomat will be called Tim. The regimes of the two countries have cordial relations until one day a military coup takes place in country Y. Y’s new regime is fairly opposed to country X’s regime and resents their past involvement in the internal affairs of their country. For political and safety reasons, the leaders of country X decide to withdraw their embassy in country Y. But on his way to the airport, Tim’s car is stopped by the police. He is escorted to a holding facility and is charged for spying on country Y.
But what happens if a diplomat misbehaves? Diplomats are humans after all and therefore prone to making mistakes. How can they be held accountable for their actions especially when they have harmed citizens in their host country? The state cannot independently impose sanctions on him/her but the two states (the diplomat’s home country and his/her host country) can together agree to settle their disputes and waive diplomatic immunity.[2]
Diplomatic immunity in New Zealand
New Zealand signed the Vienna Convention on 18th April 1961 and two acts, the Diplomatic Privileges and Immunities Act 1968 and the Consular Privileges and Immunities Act 1971, provide for diplomatic and consular immunities. In August 1985, the Public Issues Committee of the Auckland District Law Society released a report expressing its views regarding diplomatic immunities. The report was released to address growing public concern regarding such immunities after a story emerged of a Londoner leasing his house to a diplomat. When the lease expired, the owner wanted to return to his house but the diplomat refused to leave. The owner was unable to bring legal proceedings against him and when he tried to re-enter the premises, the diplomat filed a trespass notice against him. Just a year before this incident reached New Zealand, a Chilean diplomat in New Zealand was involved in a car accident in which another person was killed. The police suspected that the diplomat was under the influence of alcohol but were unable to breathalyse him. Of course no legal proceedings could be brought against him despite the tragic death of a citizen. So the report had the stated purpose of “consider[ing] the extent of […] immunity and perhaps to consider changes”.[3] The report makes three conclusions. First it argues that if a new incident was to take place where diplomatic immunity was claimed and granted that the New Zealand government has the responsibility to communicate its displeasure to the foreign government “in terms which are appropriately strong for the occasion”[4] and that the New Zealand public should perhaps be informed of such communication. Secondly, it asked whether New Zealand should take an international stand regarding diplomatic immunity and push for the refinement of such conventions. It argues that New Zealand could lead such a change by establishing agreements with foreign governments so that immunities could not be claimed for certain types of offences such as “intentional killing, sexual offences*, drink/driving offences, and the like”.[5] Finally the report concludes that New Zealand citizens should be compensated for loss suffered at the hands of foreign diplomats.
A new incident
In early May 2014, a Malaysian diplomat allegedly followed a young New Zealand woman home, broke into her house and undressed. The young woman had to fight her attacker off and neighbours came to her aid. The attacker left the house but waited outside for the police to show up. He was arrested and charged for burglary and assault with intent of rape but he invoked his diplomatic immunity and the legal process was stalled. The diplomat was later allowed to leave New Zealand and return to Malaysia. Much debate has sparked in the media since the incident was made public. As a result, an inquiry has been launched on how the Ministry of Foreign Affairs and Trade (MFAT) handled the case. The inquiry is to look at the procedures MFAT uses to seek a waiver of diplomatic immunity and how this particular request to the Malaysian government to waive its diplomat’s immunity was handled.
There seem to be two plausible scenarios that would have led to this situation. Since the incident became public the Malaysian government has cooperated with New Zealand and has agreed to waive diplomatic immunity for this case. This is hardly surprising since Malaysia’s public image in New Zealand would suffer greatly if they did not. It is possible however that before the story had such visibility, Malaysia’s stance on the matter was different in which case New Zealand would have been powerless. Another scenario however would be that MFAT failed to request a waving of diplomatic immunity to the Malaysian government within a certain time period or at least failed to communicate clearly to the Malaysian government that they were intending to take action against the diplomat. The lack of transparency regarding the process so far only allows us to speculate .
What is clear however is that the government did not follow the recommendations from the Public Issues Committee of the Auckland District Law Society of 1985. We cannot do without diplomatic immunity but it is time to refine the concept.
[1] Evolution of diplomatic privileges and immunity. http://www.diplomacy.edu/resources/general/evolution-diplomatic-privileges-and-immunities
[2] Hazel Fox, “Diplomatic Immunity”, The New Oxford Companion to Law, Edt by Peter Cane and Joanne Conaghan
[3] Diplomatic immunity and privileges (New Zealand). 1986.Commonwealth Law Bulletin 12 (1): 175.
[4] Ibid
[5] Ibid
*Emphasis added
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