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.
What these two separate incidents have in common is that the respective states i.e. Zimbabwe and Turkey, claimed diplomatic immunity for the individuals involved. For Mugabe, immunity was granted by South Africa based on domestic legislation. For Erdogan’s security detail, it is unknown if diplomatic immunity was granted before their arrival in Washington DC for Erdogan’s visit or after the events in question.
There has been debate about the exact source of Mugabe’s claim of immunity in international law, as she was in South Africa for predominantly private matters. However, this post assumes that Zimbabwe bases its claim on diplomatic immunity.
Is the Vienna Convention on Diplomatic Relations 1961 (‘VCDR’) the problem?
Public outrage about the granting of immunity is not unprecedented. There have been numerous instances of diplomatic officials going unpunished for alleged offences ranging from car accidents to rape. Hence, one must look at the existing legal order covering diplomatic immunity, the VCDR, to find the root of the problem. The International Court of Justice observed that provisions in the VCDR also reflect customary international law in  of the Arrest Warrant judgment.
The purposes of diplomatic immunity as set out in the preamble of the VCDR are the “promotion of friendly relations between nations”, and “not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions” (emphasis added). In accordance with Article 7 of the VCDR, “the sending State may freely appoint the members of the staff of the mission”, subject to limitations in Articles 5 (representative to more than one state), 8 (nationality requirements), 9 (persona non grata) and 11 (limitations on the size of the mission).
A plain reading of Article 7 suggests that there is great autonomy given to a sending state to freely appoint anyone to their mission. This is understandable given that a state would have varying needs or interests in different countries. However, it is also evident that the broad provision opens the possibility of it being ‘abused’ by individuals who may benefit by being granted immunity, pursuant to Article 31 of the VCDR.
This is particularly so if the individual may not actually be a diplomatic agent in the eyes of the sending state. A more worrying extrapolation from the broad reading of Article 7 is if the sending state retrospectively claims diplomatic immunity on behalf of an individual after they have been accused of a criminal offence. This may have been the case for both Mugabe and Erdogan’s security detail where the claims of diplomatic immunity surfaced after the alleged incidents.
This is worrying because it is implicit in the reading of the VCDR, and especially Article 39(1), that advance notification is required to be provided to the receiving state for an individual to be appointed to the sending state’s diplomatic mission. However, it is unclear in the incidents involving Mugabe and Erdogan’s security detail if such notification was provided. With Mugabe, it is unlikely that notification was provided since she was retrospectively granted immunity pursuant to domestic South African legislation.
Preventing further ‘abuses’ of diplomatic immunity arising from retrospective claims
There are mechanisms built into the VCDR to address problems that may arise in diplomatic immunity. For example, the receiving state may declare an individual persona non grata pursuant to Article 9(1) of the VCDR. A high-profile instance of this occurred recently was when Malaysia declared the ambassador of North Korea persona non grata following the murder of Kim Jong Nam on Malaysian territory. However, receiving states will be extremely unwilling to do this because it is likely to disrupt foreign relations and there remains a possibility of a diplomatic crisis escalating as seen in the case involving Malaysia and North Korea.
A sending state may also waive immunity pursuant to Article 32 of the VCDR. While this has been done before, there is usually no political incentive for a sending state to do that. This would be especially so in the case of Grace Mugabe, given her particularly high-profile as First Lady. The waiver of immunity argument also assumes that immunity was granted in the first place, i.e. before the incident occurred.
The Arrest Warrant judgment makes some suggestions for combating impunity such as prosecution of the individual in the sending state. This has been followed by some states, such as Romania. Ultimately, the decision to prosecute depends on the interests of the sending state which would consider the position of the individual and balance this against its interests in maintaining good relations with the receiving state. At the same time in dealing with retrospective claims of immunity, a sending state may be unwilling to pursue prosecution at home because in the eyes of the sending state, the accused individual did nothing wrong in the first place.
The difficulty in addressing retrospective claims of diplomatic immunity is recognising that diplomatic immunity at its core is a ‘two-way street’. The interests of the receiving state in entertaining the possibility of prosecuting the individual especially for serious crimes such as assault, must be balanced against a disincentive for the sending state to retrospectively claim immunity. The proposed solution strikes this balance.
Should a state not have given prior notification to the foreign ministry of the receiving state that the individual is a member of the diplomatic mission, the granting of diplomatic immunity is subject to agreement by the receiving state. The key criterion that a receiving state may consider is that it must be satisfied with the individual’s role and purpose as part of the diplomatic mission. Immunity should not be granted for the benefit of the individual as alluded to in the preamble of the VCDR, and consequently ‘abused’.
This ‘functional approach’ is similar to that of the first instance judgment in Estrada v. Al Juffali  EWHC 213 (Fam). Ultimately, the English Court of Appeal in Al-Juffali v Estrada  EWCA Civ 176 ruled in favor of the formal approach which looked at the certificate issued by the UK’s Foreign and Commonwealth Office, as compared to the actual role carried out by the individual.
The ‘functional approach’ is preferred when a sending state retrospectively claims diplomatic immunity. This higher threshold imposed on the sending state prevents possibilities of ‘abuse’ by allowing the receiving state to consider its own interests before deciding to grant diplomatic immunity. An additional mechanism may be built in whereby the receiving state retains the discretion not to allow the said individual to leave the territory of the receiving state until such an agreement has been concluded by both states.
If we view the actions of South Africa through the lens of this proposed functional approach, it can be said that the correct result was obtained. South Africa had the opportunity to consider its own national interests before granting Grace Mugabe immunity, following a retrospective claim by Zimbabwe. It is crucial to recall the purpose of the VCDR and the granting of diplomatic immunity in international law – promoting the friendly relations between states. To prevent possible ‘abuse’, a higher standard of review by adopting a ‘functional approach’ can be employed for retrospective claims of diplomatic immunity without prior notification. This practical solution strikes the right balance between the interests of both the sending and receiving state.
Rishikeesh Wijaya is currently a J.D. candidate at Columbia Law School and part of a double degree programme (LL.B. and J.D.) offered by King’s College London (KCL) and Columbia Law School. He has written this blogpost as part of the King’s Undergraduate Research Fellowship under the supervision of Dr. Philippa Webb on the landscape of immunity. He had taken public international law while on the LL.B. programme at KCL, and also represented the university and the UK at the international rounds of the Philip C. Jessup International Law Moot Court Competition 2017.