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Why in news?
- Belgian ambassador’s wife claims diplomatic immunity after slapping a Seoul store assistant.
What is diplomatic immunity?
- Diplomatic immunity is a legal immunity that grants diplomats safe passage and protects them from prosecution or any other form of legal proceedings from laws of the host country.
- It is a privilege of exemption from certain laws and taxes granted to diplomats by the country in which they are posted.
- The custom was formed so that diplomats can function without fear, threat, or intimidation from the host country.
History of Diplomatic immunity
- Ramayana and Mahabharata
- The concept of diplomatic immunity can be found in ancient Indian epics like Ramayana(between 3000 and 2000 BC) Mahabharata (around 4th century BC) where messengers and diplomats were given immunity from capital punishment.
- Course of Evolution
- During the evolution of international justice, many wars were considered rebellions or unlawful by one or more combatant sides.
- In such cases, the servants of the “criminal” sovereign were often considered accomplices and their persons violated.
- In other circumstances, harbingers of inconsiderable demands were killed as a declaration of war.
- Herodotus records that when heralds of the Persian king Xerxes demanded “earth and water” (i.e., symbols of submission) of Greek cities.
- The Athenians dumped them in a pit, while the Spartans dumped them down a well.
- Herodotus considers the mistreatment of envoys to be a felony. He tells of divine retribution falling on Sparta as a result of this act.
Legal Basis- The Vienna Convention on Diplomatic Relations of 1961
- The Vienna Convention on Diplomatic Relations of 1961 is an international treaty that defines a framework for diplomatic relations between independent countries.
- It specifies the privileges of a diplomatic mission that enable diplomats to perform their function without fear of coercion or harassment by the host country.
- Legal basis for diplomatic immunity
- Its articles are considered a cornerstone of modern international relations.
- It has been ratified by 192 states, including South Korea, have ratified them. That is to say, it is a statute within that country’s legal system that cannot be broken.
- Diplomats must not be liable for any form of arrest or detention.
- The family members of diplomats that are living in the host country enjoy most of the same protections as the diplomats themselves.
- They are immune from civil or criminal prosecution, though the sending country may waive this right under Article 32.
- The immunity enjoyed by a diplomat posted in the embassy is “inviolable”
Exceptions to prevent misuses
- The diplomat’s home country can waive immunity but this can happen only when the individual has committed a ‘serious crime’, unconnected with their diplomatic role, or has witnessed such a crime.
- Alternatively, the home country may prosecute the individual.
- The privilege of diplomatic immunity is not for an individual’s benefit.
- If a diplomat acts outside his business of conducting international relations, a question arises over whether his immunity still applies.
Some Examples of Misuse of Diplomatic Immunity
- There are many examples in the past where cover provided by diplomatic immunity has been grossly misused.
- Saudi diplomat was accused of raping 2 Nepalese women in India, left without facing any trial.
- In 1967, a Burmese Ambassador shot dead his wife in Sri Lanka, he was not prosecuted by the law as he enjoyed diplomatic immunity.
- In 1981, the son of Ghanian United Nations (UN) diplomat was accused of committing various crimes like rapes and robberies in New York.
- The use of diplomatic immunity has come under scrutiny in other countries especially after the case involving the UK and the USA.
- The wife of an American ambassador has been alleged for her involvement in a fatal road accident that killed a British teenager. But she flew away from the UK using diplomatic immunity.
- The parents of the teenager launched a court case. In that, they argued that Britain’s Foreign Office wrongly decided that the wife of an American ambassador had diplomatic immunity. However, the parents eventually lost the case in 2020.
Importance of diplomatic immunity
- Diplomatic immunity is designed to allow diplomats safety and immunity from lawsuits or prosecution under the host country’s laws.
- Two-way immunity allows diplomats to effectively carry out their duties with the host state assured that their diplomats will receive the same treatment.
- IFS officer DevyaniUttamKhobragade was in the headlines for weeks in December 2013 after US authorities charged her with visa fraud and arrested her.
- The incident triggered a major diplomatic row between the Indian and US governments. Her appointment is signficant as the US visa fraud case and an MEA inquiry against her meant she did not get any major foreign postings.
- While diplomatic immunity is intended to “insulate” diplomats from harm, it does not insulate their countries from a bad reputation and a blow to bilateral ties.
Mains model question
- What is diplomatic immunity? What is the need for it? Discuss how its misuse can be prevented.