Originally published on the CGS blog on January 19, 2016.
On December 31st the UN Library announced via Twitter that its most popular book of 2015 was Immunity of Heads of State and State Officials for International Crimes by Ramona Pedretti. When this tweet appeared in my newsfeed, I had a flashback to a Scandal episode in which a murderer gets off scot-free because of his diplomatic immunity. But, as I’ve learned, things are often more complex in the real world than they appear in ShondaLand (except maybe relationships). Diplomatic immunity is no exception.
What is diplomatic immunity?
It is widely believed that diplomatic immunity originated during the 12th Century Crusades and stems from an agreement between Saladin (of the Ayyubid dynasty) and Richard the Lionheart; the two agreed that delegates delivering messages for the enemy would not be harmed.
The current rules concerning diplomatic immunity are set forth in the 1961 Vienna Convention on Diplomatic Relations. The treaty basically states that, for example, country A’s diplomat cannot be arrested for breaking country B’s laws while she is conducting business in country B.
Diplomatic immunity has given rise to dramatic incidents in recent years. Just last September, Majed Hassan Ashoor, a Saudi First Secretary working in Delhi, was accused of holding captive and raping two Nepali women whom he had hired as domestic workers. Saudi Arabia refused to revoke Ashoor’s immunity, preventing India from trying and punishing him.
Why does it matter?
When I hear of stories like Ashoor’s, I find myself asking “Why not just get rid of diplomatic immunity altogether?” Well, this isn’t Shondaland so the answer isn’t that simple. The reality is that without diplomatic immunity and the assurance that diplomats won’t be at risk of prosecution while they’re abroad, countries would likely be less willing to engage in diplomacy and other engagements with their fellow countries and the international community generally. For instance, Richard the Lionheart probably wouldn’t have continued trying to broker an end to war with Saladin if his consuls were killed every time they set out to deliver a message.
What is the extent of diplomatic immunity?
Now, Pedretti’s book is specifically about immunity from atrocity crimes (genocide, crimes against humanity, and war crimes). Developments over the past half century have eliminated diplomatic immunity from prosecution for atrocity crimes. However, Heads of State who commit genocide can–and do–still get away with it. Take, for example, Sudanese president Omar al-Bashir, a man accused of atrocity crimes by the International Criminal Court (ICC). Last June, when al-Bashir traveled to South Africa to attend a diplomatic summit for African Union (AU) leaders, several international groups pressured South Africa to arrest the President and hand him over to the ICC to stand trial (particularly because South Africa owed a duty to the ICC as a State Party to it). However, South Africa stalled–torn between its desire to honor diplomatic immunity to Sudan and its desire to maintain good standing in the international community–allowing al-Bashir to escape back to Sudan and avoid arrest.This is just one illustration of how international standards are difficult to enforce.
Should we be worried about UN members’ interest in immunity?
When the UN announced that a book on immunity for war crimes was its most popular, many commentators gasped in horror, assuming that UN members had checked the book out to see what they could get away with under diplomatic immunity. But the popularity of this book could also signal a positive: countries and diplomats are interested in international criminal law and want to know where and when diplomatic immunity does not apply.
Admittedly, the issue is more complicated than can be covered in a short blog post. So, if you’re interested in learning more, check out these articles:
Can you get away with any crime if you have diplomatic immunity? Joshua E. Keating
Review of Diplomatic Immunity by Wikipedia
Public Support for International Arrest Warrants for Heads of State, Regardless of Immunity Laws, ABA-ICC Project
And, if you’ve got $200 laying around, you can buy the book itself on Amazon.
