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21 September 2017 14:19 (South Africa)
Africa

#MugabeGate: A handbook to diplomatic immunity and impunity

  • J Brooks Spector
    brooks spector 02 BW
    J Brooks Spector

    Spector settled in Johannesburg after a career as a US diplomat in Africa and East Asia. He has taught at the U. of the Witwatersrand, been a consultant for an international NGO, run a theatre, and been a commentator for South African and international print/broadcast/online media, in addition to writing for The Daily Maverick from day one. Spector is a Writing Fellow of the Unit of Johannesburg’s Institute for Advanced Studies. He says he learned everything he needs to know about politics from ‘Casablanca.’ Maybe he's cynical about some things, but a late Beethoven string quartet, John Coltrane’s music and a dish of Pad Thai will bring him close to tears.

  • Africa
Photo: Zimbabwean President Robert Mugabe and his wife Grace Mugabe at a funeral of his sister Bridgette Mugabe, in January 2014. Photo: Aaron Ufumeli/(EPA)

News coverage of some extraordinary behaviour by a certain visiting first lady helps shine a spotlight on the concept of diplomatic immunity. As a result, it is time for some exploration about what, in fact, diplomatic immunity actually means – and doesn’t. J. BROOKS SPECTOR takes a look – and, along the way, offers a personal memory or two as well.

Even before we move on to that bigger picture, there is time for a personal story that I believe helps offer some insights into diplomatic immunity. Years ago, when my family and I were assigned to the American Embassy in a small African nation, my wife had a car accident. Well, actually, she wasn’t even moving because she was waiting for the traffic to move on a downtown street in the capital. Nevertheless, our car was struck by someone else’s vehicle in which the driver had executed a particularly poorly executed turn.

No one was hurt, but our car – a sleek new Honda Prelude with all the bells and whistles – suffered impressive damage on the passenger-side door. Yes, of course we had comprehensive insurance coverage – it was a requirement by the embassy, even if it was not actually required by the laws of the nation where we were living. But, since the fault for this particular accident clearly wasn’t on our side, we wanted to avoid filing an insurance claim if we could, since that would lead to a hike in rates.

What to do? It was, seemingly, blindingly obvious. We asked our local insurance company to contact the other driver and arrange with his insurance company and the police to sort the whole thing out calmly and rationally.

Soon enough, however, it became clear there were some issues. The other driver didn’t have insurance. Then he didn’t have a driver’s licence, and, then, eventually, the driver himself disappeared off the map entirely, just as if he had never existed.

Then it became a question of tracking down the owner of the car. Once he was finally located, he ducked and dived sufficiently about any liability that he eventually claimed the car had been in another city being repaired at the time such that we must have dreamt up the entire episode and we were trying to pin our own misfortunes on him unfairly. With that impasse reached, we turned to a trusted local attorney to unsnarl this mess.

But, if we were going to make use of local laws and the courts to deal with the cost and bother of the repairs, we would need to step back a bit from our status as holders of diplomatic immunity automatically granted to us by our host country, by virtue of our name on the official diplomatic list issued by the foreign ministry. Accordingly, a whole series of telegrams went back and forth between our embassy and the State Department in Washington to gain permission for us to waive our diplomatic immunity, even if our car hadn’t even been moving and my wife hadn’t caused the mishap. This would be required so we could enter into court proceedings under local law in order to get the responsible party to pay for the damage.

Once we had temporarily surrendered the hallowed but abstract protections of diplomatic immunity in order to pursue this matter, we naturally turned to the chairman of the nation’s bar association to serve as our attorney. This case should have been a slam dunk for us - but, a few days later, our attorney called to say we had lost our case. The whole thing was over and it would be best if we just claimed against our insurance, or just paid ourselves. “Lost the case? What do you mean? We haven’t even gone to court yet,” I said, stunned by the idea. In response, he explained, “But you need to understand, the owner of the other car has asked the head of our nation’s government’s personal lawyer to represent him. It’s check mate for you. Finished.”

The moral of this little drama, of course, is that, yes, diplomatic immunity is designed to protect diplomats from being frog-marched into court - or far worse - but, by itself, it will not be a comprehensive shield for a diplomat against all mishaps or legal trouble, despite what television and the movies sometimes make it out to be. And just for the fun of it, imagine how it might have gone for us, given the circumstances as described, that after our having waived diplomatic immunity, if we had actually gone to court and then lost the case and been forced to pay damages or been countersued for damage to reputation. In the end, we dropped our legal efforts, dug into our pockets, and paid to fix the car ourselves.

Now here’s another, slightly different tale. A good friend of ours reminded me that when he received an assignment to an embassy in a particularly dangerous, war-torn nation, that one-year assignment was to be without his family. They were supposed to return to Washington and pick up the threads of their lives there, until their next overseas assignment in which they could accompany my friend.

But, instead of packing up his household and sending his family to the US for a year of living out of boxes; he argued instead that it would be better for his family to remain where they already were well-settled at their then-current assignment, rather than ask them reestablish their lives in Washington for only a year before moving on to their next overseas assignment. In fact, it would even save the government considerable money in shipping, air fares and supplemental allowances. Moreover, it would allow his children to complete their elementary schooling in just one school. (Disruptions like these on famillies are something American diplomats have increasingly come to worry over, given the difficulties families already face in the normal course of moving around so much and with the unpopularity of sending children off to boarding schools.)

Although the US government eventually – and very reluctantly - acceded to my friend’s request, there was much to-ing and fro-ing over this – especially the circumstances of his family’s resulting lack of diplomatic status. There were even concerns such a plan could have an impact on the diplomatic status of other diplomats – given the importance of maintaining reciprocity in the treatment of diplomats. Eventually my friend signed an undertaking his family would waive diplomatic immunity and privileges while they stayed in place while he went on to that war zone assignment. But, this was only after they had been sternly reminded of the baleful consequences of any criminal behaviour, any traffic violations or worse on the part of his family, while they were living without any diplomatic immunity. They survived, but his wife apparently drove extra carefully for that entire year, just in case.

So, where did all this business of diplomatic immunity actually start and why is there all this fuss about it? The basic meaning is that it is a form of legal immunity to ensure diplomats (and their families) receive safe passage during their travel to and then their assignments in a foreign nation and that they are not susceptible to lawsuits, prosecution, fines or imprisonment under the host country’s laws. They can, however, always be expelled from the country of assignment or withdrawn by their own government and then punished once they return home for messing up big time.

The US State Department’s handbook on immunity for law enforcement officials offers the initial guidance saying:

“Diplomatic immunity is a principle of international law by which certain foreign   government officials are not subject to the jurisdiction of local courts and other   authorities for both their official and, to a large extent, their personal activities.

“The principle of diplomatic immunity is one of the oldest elements of foreign relations. Ancient Greek and Roman governments, for example, accorded special status to   envoys, and the basic concept has evolved and endured until the present. As a matter of international law, diplomatic immunity was primarily based on custom and international practice until quite recently.

“In the period since World War II, a number of international conventions (most noteworthy, the Vienna Convention on Diplomatic Relations and the   Vienna Convention on Consular Relations) have been concluded. These conventions have formalized the customary rules and made their application more uniform.   Notwithstanding the antiquity of the concept of diplomatic immunity, its purpose is   often misunderstood by the citizens of this and other countries. Occasional abuses of diplomatic immunity, which are brought to public attention, have also served to prejudice public attitudes toward this practice.

“Dealing with the concept of immunity poses particular problems for law enforcement officers who, by virtue of their oath and training, are   unaccustomed to granting special privileges   or concessions to individuals who break the   law. On the other hand, police officers who understand the importance of diplomatic   immunity may be inclined to be overly generous in its application if they do not have   a full understanding of its parameters….

“The term diplomatic immunity is popularly, and erroneously, understood to refer to special   protections afforded all employees of foreign governments who are present in the United   States as official representatives of their home   governments. Law enforcement officials, however, must have a more sophisticated   understanding of the concept.

“There are over 100,000 representatives of foreign governments, including dependents, in the United States. Many of these persons may be entitled to some degree of immunity under international law. Some of these persons are members of diplomatic missions, others are assigned to consular posts, and still others   are employees of international organizations   or members of national missions to such   international organizations. For each of these categories of persons, particular rules apply and, even within these categories, different levels of immunity may be accorded to different classes of persons. Most of these persons are assigned to Washington, D.C., and New York City, but large numbers are assigned in other   major cities around the country. Moreover, nearly all of these persons are free to travel   around the country either on official business   or for pleasure.”

While the essential concept for diplomatic immunity goes far back into history, and was first enunciated clearly by the British parliament in 1708, immunity stands in contrast to earlier practices in some places where foreign envoys might well be very poorly treated by virtue of being the bearer of some really bad news, or, perhaps, an invitation for the two nations to meet for a bit of national hand-to-hand combat. In its more modern incarnation, as the State Department handbook explains, diplomatic immunity has now been codified as generally accepted international law via the “Vienna Convention on Diplomatic Relations”.

When a nation receives foreign diplomats, as they represent their nation’s government, the receiving government grants privileges and immunities in accord with that Vienna Convention, in order to ensure the incoming diplomats can carry out their duties, but with the understanding that these privileges are being provided on a reciprocal basis.

The basic point of such immunity is to permit the continued conduct of government to government relations, by diplomats, even during serious disagreements – and right up to the outbreak of armed conflict. As an aside, in homage to diplomacy’s much older, more stylized, genteel norms and behaviours, diplomatic notes – the official correspondence between governments – usually begin with the following kind of language: “The Kingdom of Ruritania presents its compliments to the Empire of Lilliput…” - even if the two nations are poised to engage in a stiff bout of border fighting. And even if hostilities do break out between nations, their two sets of diplomats are eventually repatriated to their home countries, rather than being tossed into deep pit or a jungle prison as a warning to others, as might have been the case two millennia earlier.

Problems enter when a person who has been granted diplomatic immunity is accused of a serious crime in their assigned post. In such cases, a diplomat’s home country might well elect to waive immunity in order to permit a trial when an individual has committed a truly serious crime or is a witness to such an event. Once immunity has been waived, it is then possible for the resident country to prosecute the offending diplomat. The more usual practice, however, is for the host nation to expel the offending individual – often with assurances the home country will punish them for that crime once they have returned home.

As is the case with most nations, the US has codified its treatment of foreign diplomats in accordance with that Vienna Convention. Making things a bit more complex, however, the staff members of international organizations do not enjoy quite the same rights as regular diplomats do, as their circumstances are not the subject of that Vienna Convention. Nevertheless, they generally gain limited immunity, and a fuller sense of diplomatic immunity is often extended to the higher-ranking officials of those international bodies anyway.

In addition, while the distinction is often blurred in normal conversation, consular officials (without concurrent diplomatic status) in non-capital cities usually have more limited diplomatic immunity, and the technical and administrative staffs of embassies (such as secretaries, administrative support staff, and communications specialists) will have still more limited immunity under those Vienna rules. Nevertheless, some nations will still grant such staffers diplomatic status in order to insulate them from possible problems in the interest of keeping up cooperative relations.

Yet other officials who travel frequently to other nations may not carry diplomatic passports, including some active duty military and government officials. In yet other cases, a bilateral agreement will govern the status of any military participating in military exercises or serving in military bases in a receiving nation – under what would be called a “status of forces” agreement.

In a formal sense, then, diplomatic immunity is restricted to officials accredited to a host nation, or who are in the process of travelling to or from their host country, even though some countries may agree to extend diplomatic courtesies to others travelling with a diplomatic passport or who enter their territory under different circumstances.

The basic principle of the Vienna Convention is that “without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.” That said, and human nature being what it is, it is inevitable that over the years and throughout the world, some diplomats have engaged in a wide range of criminal activity inconsistent with their diplomatic status.

Such behaviour runs from garden-variety espionage to child custody violations and child neglect or mistreatment. And there are those who have carried out the smuggling of large quantities of duty-free tobacco, highly endangered animals and plants; the trafficking in illegal drugs or persons; the mistreatment of household staffers working for them from the home or a third country; and well as such crimes as money laundering, tax evasion, terror threats, and even murder. Just like everyone else.

In many of these cases, the resulting scandals become front-page news stories in both nations, and, on occasions, it has even led to a serious downscaling or even rupturing of bilateral relations. As noted above, if an arrest warrant is eventually issued, except in some particularly sordid cases, the home country would probably invoke diplomatic immunity to cover their overseas diplomats, and the host country’s best reply becomes expulsion – declaring someone persona non grata (aka, someone really not welcomed anymore) – and with the expectation – or at least the hope - of a trial and appropriate punishment for that crime after the offending diplomat is back home.

For decades, motor vehicle violations by foreign diplomats in Washington and New York City in the US – and, of course, in other large cities around the world with crowded streets and scarce parking – have been a source of unending irritation to many. The issues range from infractions of parking rules, speeding, and then on to DUI (Driving Under the Influence) offences – including those resulting in the deaths of victims. Many nations now insist that their offending diplomatic drivers must pay their traffic fines.

In Washington and New York City (where the UN is located), historically, a particularly galling irritation has been the truly massive amount of traffic tickets accumulated by the then-Soviet Union, other Eastern Bloc nations, as well as a number of other states. The US has not been immune to this problem either as their diplomats and drivers also assembled a rather respectable mound of traffic and parking tickets in a very crowded London over the years.

In some particularly egregious cases, such as with a Georgian diplomat stationed in the US, Gueorgui Makharadze, who, while driving under the influence, had caused a five-car accident that led to the death of a 16-year old girl. The Georgian government eventually waived his diplomatic immunity in the midst of a huge public outcry that eventually led to Makharadze’s sentencing to seven years in prison.

Financial questions – such as unpaid rents, alimony, and child support – have caused other difficulties under the provisions of diplomatic immunity. Given the usual inability of courts to enforce civil judgements because of that, landlords in some nations have become increasingly reluctant to rent properties to foreign diplomats. In the US, the Foreign Sovereign Immunities Act says, “the property in the United States of a foreign state shall be immune from attachment, arrest and execution,” thereby feeding a reluctance in the US by some landlords to rent property to some foreign diplomats, wherever there are possibilities of their defaulting on the rent.

While diplomats are exempt from nearly all locally imposed taxes, they can be charged levies for specific services rendered, although such fees should be charged to all diplomats equally. Similarly, they are exempt from import duties on goods brought into a country for their personal use, although that has sometimes led to charges that some diplomats have been profiting from the resale of such tax free items – inevitably including tobacco, liquor and, of course, very fancy motor vehicles.

And that, of course, leads us back to the question of how diplomatic immunity is authorised for visiting dignitaries to an international meeting. The usual method is for a nation to provide an advance list of incoming visiting dignitaries, if an international or bilateral conference is being organized. Asking about this, I have been unable to identify examples of any retroactive claims of diplomatic immunity for people, especially after an alleged criminal act.

Regardless, it should be noted that in terms of the current issue of the visiting Grace Mugabe, the South African Department of International Relations and Cooperation (DIRCO) spokesperson noted that it was at the discretion of the minister to grant Mugabe immunity, citing the need to maintain good inter-governmental relations with the SADC region and the derivative immunity of spouses of heads of state. The department said that the minister had carefully considered all the relevant factors, including the “need to uphold the rule of law, ensure fair administration of justice and uphold the rights of the complainant” and “the fact that the matter coincides with South Africa's hosting of the 37th SADC Summit of Heads of State and Government.” All of this, of course, came after the fact of the alleged assault.

However, once that kind of retroactive decision-making begins, that may be where the whole carefully balanced Vienna Convention system begins to wobble a bit. Anyone travelling abroad with some really serious political juice back home – let’s just say while being on private family or medical travel, who then is accused of physical assault, and who then is suddenly listed as a delegate to an international meeting after the fact - might well attempt to assert diplomatic immunity after they have committed a criminal act.

(Just out of curiosity, has it been established whether this particular traveller entered South Africa on a diplomatic passport and visa, or was it perhaps on a South African passport, given that she was born in Benoni? Individuals are not, obviously, in a position to claim diplomatic immunity in the very country whose passport they are travelling on, of course.)

One wonders if DIRCO is now gearing up for future abuses on the part of many others in years to come. Or perhaps, this time around it has just had a case of not wanting to upset the bilateral political and economic applecart and thereby giving the folks in Harare excuses to make life difficult for South African diplomats, tourists, business visitors and business operators there, whenever the spirit might move them. DM

Photo: Zimbabwean President Robert Mugabe and his wife Grace Mugabe at a funeral of his sister Bridgette Mugabe, in January 2014. Photo: Aaron Ufumeli/(EPA)

  • J Brooks Spector
    brooks spector 02 BW
    J Brooks Spector

    Spector settled in Johannesburg after a career as a US diplomat in Africa and East Asia. He has taught at the U. of the Witwatersrand, been a consultant for an international NGO, run a theatre, and been a commentator for South African and international print/broadcast/online media, in addition to writing for The Daily Maverick from day one. Spector is a Writing Fellow of the Unit of Johannesburg’s Institute for Advanced Studies. He says he learned everything he needs to know about politics from ‘Casablanca.’ Maybe he's cynical about some things, but a late Beethoven string quartet, John Coltrane’s music and a dish of Pad Thai will bring him close to tears.

  • Africa

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