By Rishikeesh Wijaya*
Uproar about purported ‘abuses’ of diplomatic immunity has not been uncommon, most recently involving the wife of the sitting Head of State of Zimbabwe, Dr. Grace Mugabe. Media reports assert that Dr. Mugabe attacked a South African model with a piece of electrical cord in a Johannesburg hotel suite. South Africa retrospectively granted her diplomatic immunity, following an assertion by the Embassy of Zimbabwe, and she eventually left the country to return to Zimbabwe with no charges pressed against her.
This was a “U-turn” from the initial decision preventing her from leaving pending the outcome of investigations. Deputy President of South Africa, Mr. Cyril Ramaphosa in response to questioning by South African Members of Parliament, said that immunity was granted in line with “internationally-recognised immunity regulations” but also admitted that it was “the first time [they] have utilized this type of convention”. It is unclear what convention he was referring to.
A separate incident occurred during Turkish President Erdogan’s trip to the United States America in May 2017. Members of his security detail and security guards from the Turkish embassy clashed with peaceful protestors outside the home of the Turkish ambassador in Washington DC.
Diplomatic immunity was initially claimed by Turkish authorities but it has now been reported that 19 people, including 15 identified as Turkish security officials were indicted by a grand jury in Washington DC. Several of these security officials returned to Turkey and it is unclear if there will be any legal repercussions in the United States. It is also unclear if any of those indicted remain in the US as diplomatic staff for Turkey. Continue reading
The Dag Hammarskjöld library in New York
Media reported at the beginning of January 2016 that the most popular book of 2015 at the United Nations’ headquarters library was a book on immunity for heads of state and state officials for serious crimes.
The Dag Hammarskjöld library in New York announced on Twitter that ‘Immunity of Heads of State and State Officials for International Crimes” by Ms Ramona Pedretti was its most-browsed book that year, prompting speculation online about why UN staff and international delegates to the UN were borrowing such a title.
Numerous online articles and reactions on Twitter suggested that the book had been borrowed by UN diplomats so as to know how to avoid prosecution in The Hague for their acts.
Politics and policy website Vox wrote: “The UN is full of delegates representing awful dictatorships, and the 2015 book that it says got checked out the most from the UN library was about … how to be immune from war crimes prosecution. That does not seem like a good thing.”
According to online sources, however, the UN library later clarified that this title was its most popular “new” book, acquired in July 2015. It had only been borrowed twice and checked out for browsing four times.
Moreover, the author of the book, Dr Ramona Pedretti commented that the book is not so much written for heads of state to avoid prosecution. On the contrary, it concludes that former Heads of State and other State officials do not benefit from immunity when charged with international crimes before foreign national courts. And although acting Heads of State cannot be prosecuted in national courts abroad according to customary international law, the book recognises that the situation is different before international criminal tribunals, where immunity for Heads of State does not bar proceedings. Continue reading
by Arnold Tsunga and Wayne Jordash QC
African Union Summit, July 2014
There is a general notion that the law is like a spiders web. It only catches the weak.
The decision adopted by the AU heads in Malabo, Equatorial Guinea, to grant immunity from prosecution for serious human rights violations to heads of state and senior government officials at the African Court of Justice and Human and Peoples Rights only serves to reinforce this perception.
Heads who faced justice
Few African heads of state have been tried for serious human rights violations of their own people. Those that come to mind are Charles Taylor (Liberia) and Hosni Mubarak (Egypt). Charles Taylor was tried by a hybrid tribunal set up under the auspices of the UN in Sierra Leone (sitting in The Hague, a city that has become the seat of international justice). After being overthrown in a revolution, Mubarak was tried by domestic courts in what some view as flawed victors justice. The AU was not involved in either of these proceedings.
Others await or are going through trial. These are Laurent Gbagbo (Cote DIvoire), Omar Hassan Ahmad Al-Bashir (Sudan), Uhuru Kenyatta and his deputy, William Ruto (Kenya) at the ICC, and Hissène Habré (Chad) at an AU sponsored tribunal in Senegal. The Hissène Habré case has been awaiting trial since shortly after the millennium. Legitimate concerns have been raised about the willingness of the AU leaders to see Hissène Habré face justice and the completion of the trial. Omar Hassan Ahmad Al-Bashir has been largely protected by the AU heads that have refused to cooperate with the ICC to effect his warrant of arrest. Continue reading
by Philippa Webb
Hugo Carvajal © Reuters
A recent legal flurry on the island of Aruba (population: 100,000) has raised interesting questions about the nature and scope of diplomatic/consular immunity.
Hugo Carvajal, the former chief of Venezuelan military intelligence and retired General whose nickname is el Pollo (the Chicken), was detained in Aruba on 23 July. He had been admitted to the island on a diplomatic passport and had been named Consul-General to Aruba by Venezuela earlier in the year.
According to news reports, he was detained at Arubas international airport pursuant to a request from the United States. He is accused of conspiring with Colombian drug traffickers to export cocaine to the US. In 2008, the US Treasury Department put him on a blacklist, alleging he had protected drug shipments from FARC and provided them with weapons and logistical assistance.
Venezuelas Ministry for Foreign Affairs rejected the illegal and arbitrary detention of [a] Venezuelan diplomat and invoked the 1961 Vienna Convention on Diplomatic Relations. A local judge in Aruba, however, rejected the claim of diplomatic immunity on 25 July. The judge pointed out that Carvajals nomination of Consul General had not yet been accepted by the Dutch authorities, which was required since Aruba is part of the Kingdom of The Netherlands. The judge ordered Carvajal to be held pending extradition proceedings. Continue reading
African Leaders at the African Union Summit last week
At a summit of the African Union held last Friday in Equatorial Guinea, African leaders present voted in favour of an amendment that would grant them and “senior officials” immunity from prosecution for war crimes, crimes against humanity, and genocide before the African Court of Justice and Human Rights.
The text of the amendment, which was passed was as follows:
“No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”
It is unclear who will be entitled to immunity as a “senior state official.” Amnesty International have called the move
“a step backwards in the fight against impunity and a betrayal of the victims who suffered serious human rights abuses.”
Ahead of the meeting on Friday, 42 African and international civil society rights groups objected to the proposed amendment noting in an open letter that the resulting impunity violates international and domestic laws as well as the constitution of the African Union.
The vote was part of a larger discussion on the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. The African Court of Justice and Human Rights is the result of the decision of the African Union to amalgamate the African Court of Human and Peoples’ Rights and the Court of Justice of the African Union.