CHAPTER ONE: INTRODUCTION

1.1 BACKGROUND OF THE STUDY

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.. Today,

immunity protects the channels of diplomatic communication by

exempting diplomats from local jurisdiction so that they can

perform their duties with freedom, independence, and security.

Under the concept of reciprocity, diplomats assigned to any

country in the world benefit equally from diplomatic immunity.

The rules of diplomatic law enshrined in the Vienna Convention

have been described as ‘the cornerstone of the modern

international legal order.’ (Eileen Denza, 2008). But the

principle of diplomatic immunity dates back far further than

1961. It is one of the oldest rules of international law.

Diplomatic immunity was well‐established by the end of the

seventeenth century, evolving out of the principles of equality

of states and immunity of the sovereign, who was said to embody

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the state. As Satow put it, ‘immunity … is not a personal

immunity but in reality the immunity of

the sending state’. (Satow, 1979).

As Hazel Fox describes in her authoritative text on state

immunity, diplomatic immunity is given

i) as recognition of the sovereign independent status of

the sending State and of the public nature of the acts

which render them not subject to the jurisdiction of the

receiving State; and

ii) as protection to the diplomatic mission and staff to

ensure their efficient performance of functions free from

interference from the receiving state. (Fox, 2008)

The concept of diplomatic immunity from civil and criminal

proceedings has established itself as a fundamental of customary

diplomatic law. It is one of international law’s most successful

and enduring rules, with 185 states currently recognising the

rules of diplomacy as stated in the Vienna Convention of 1961.

Under the Convention, diplomats are not subject to arrest of

detainment (Article 29); they are immune from the criminal

jurisdiction of the receiving state (Article 31); and immune from

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civil jurisdiction for acts committed within their official

capacity (Article 31). The family of the diplomatic agent enjoys

the same immunity status (Article 37). Mission‐staff also enjoy

variable levels of immunity (Article 37).

In July 2012, Venezuela ambassador to Kenya Gerardo Carillo Silva

was accused of sexual impropriety and harassment to the junior

staff. In their complaints, the staff claimed the diplomat had

acted indecently towards them on diverse dates and some had been

forced to quit their employment after failing to withstand the

offending overtures. A watchman from the Securex Company who had

been guarding the diplomat's home claimed the ambassador had

acted indecently towards him on diverse dates forcing him to

quit. The diplomat’s driver confessed in his statement to the

police that he too hard fallen prey to the ambassador's

overtures. A long-serving cook said he was surprised to see the

diplomat stark naked in the kitchen on the morning of last

December 8. The incident took place at about 6 am when the cook

arrived to start his day of work at the ambassador’s residence.

His driver told police on April 29 this year that the diplomat

3

attempted to grab him sexually last December at the residence but

he managed to get away. However since Silva enjoyed diplomatic

immunities, he could not be prosecuted under International Law

and he was later recalled without facing any charges.(Daily

Nation, July 2003)

Still in Kenya, in May 2011, Nigeria ambassador to Kenya Dr

Chijioke Wilcox Wigwe, was accused of assault, battery and

cannibalism on his wife but faced no charges in Kenya because,

before the application to waiver his immunities could be

processed, he had already been recalled back to Nigeria. (Daily

Champion, May 2011)

In November 1982, a 23-year-old student shot and seriously

wounded a night club bouncer in Washington D.C. When identified

as the son of the Brazilian ambassador he was immediately

released and left the US.1 The Brazilian student was charged with

assault once before but charges were dropped and he was allowed

to remain in Washington on the ground of diplomatic immunity. In

1981, a man linked to at least 15 rapes at knife point in the New

York City area was arrested and positively identified by two

4

victims. He was then released because he was the son of Ghana's

ambassador to the United Nations. The man spent 45 minutes in

custody and was reported as leaving the police station laughing.

(Trescott, 1986)

1.2 STATEMENT OF THE PROBLEM

A fundamental principle of international law is that members of

diplomatic missions are shielded from legal process. A common

misconception is that diplomatic privileges and immunities confer

a license to commit wrongs.

This has led to diplomats, their families, personal servants, and

staff abuse this privilege to escape prosecution for a variety of

offenses ranging from minor traffic violations to the most

heinous criminal acts, such as the child abuse or murder.

Diplomatic immunity also permits diplomats to escape civil

liability in personal injury actions.

Everyday practice indicates that both states and diplomatic

agents still have problems with interpreting the relevant

provisions of the Vienna Convention on Diplomatic Immunity.

Unfortunately the diplomats are more likely those who

occasionally tend to misinterpret the extent of their privileges5

and thus make use or, to be more precise and correct, abuse their

inviolability and immunity. Such abuses may still be tolerable by

the receiving state in the name of securing effective performance

of diplomatic functions, if these abuses involve merely minor

offences or crimes. But do receiving states and the international

community have to tolerate personal inviolability and diplomatic

immunity in case of serious crimes such as murder and conspiracy

as well as war crimes and crimes against humanity?

The approach adopted by the Vienna Convention on Diplomatic

Relations of 1961, fails to take cognizance of elementary

interests of the receiving State and individual values which

might be put into jeopardy if diplomatic privileges, e.g., the

inviolability of diplomatic premises, are conceived as precluding

even measures against acts which aims at the safety of the

receiving State or threaten human 1ife. It seems hardly

acceptable that in extreme situations the receiving State is left

with the option either to grant protection to individuals or,

even more dramatically, to ensure its own self-preservation, or

to comply with international law.

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The present article intends to address such issues and examine

possible solutions to these problems and possible remedies

1.3 OBJECTIVES

i) Examine the existing remedies in response to diplomatic

crimes

ii) Examine possible proposal for reforms to counter the

issue.

1.4 RESEARCH QUESTIONS

The study attempted to answer the following questions,

i) What measures exists to curb the issues of diplomatic

violations?

ii) To what extent do the existing remedies to curb

diplomatic crimes effective?

iii) Which are the possible proposal reforms to counter the

crime?

1.5 RESEARCH HYPOTHESIS

i) The measures put in place to deal with diplomatic crimes are

ineffective

1.6 SIGNIFICANCE OF THE STUDY

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i) Other scholars and researchers are bound to benefit

especially those interested in the same subject as a source

of reference.

ii) The recommendations made will help identify areas for

future research by scholars who want to further on the same

study.

iii) Personally the researcher benefits in marks earned to

pass the final exams.

1.7 RESEARCH METHODOLOGY

1.7.1 INTRODUCTION

This chapter includes the process undertaken in order to realize

research objectives. It includes research design, research site,

population, sampling techniques, research instruments, details on

data collection and description of data analysis.

1.7.2 RESEARCH DESIGN

The research design for this study is a descriptive design. In

view of this, the study adopted the field survey method to

collect both quantitative and qualitative data. The field survey

8

implies the process of gaining insight into the general picture

of a situation, without utilizing the entire population (Gall,

Borg and Gall, 1996: 28).

A sample of the respondent was selected from the population using

purposive technique where the researcher hand- picks the staff

that is informative and can facilitate results. The researcher

adopted a descriptive research design involving the researcher

visiting the ministry of foreign affairs, Protocol registry to

ask questions on the state of affairs as it is on records

appraisal and disposal. The researcher reports the findings as

they are.

1.7.3 SITE

Most of the research was carried out at the Ministry of Foreign

Affairs of the Republic of Kenya between the months of May to

August 2012

1.7.4 THE TARGET POPULATION

The population of the study was drawn from protocol division in

the ministry of foreign affairs which is responsible for

accrediting diplomats

9

The population involved the entire group of ministry of foreign

affairs as a targeted organization. The focus was centered on

staff in protocol division which comprise of;

The chief of protocol

Deputy Chief of protocol

Privileges and Immunities department staffs

Diplomatic safety and security staff

1.7.5 RESEARCH INSTRUMENTS

Data was collected using structured questionnaires, interviews

and observation. Open discussions were used where validation of

data was necessary.

a) Questionnaires

10

The researcher gave questionnaire to seven Privileges and

Immunities staff. The reason behind this was that it was easier

to reach a large group of respondents within a short time and the

questionnaires helped in avoiding biasness and they provided the

respondent with enough time to reflect and respond.

From the respondent of questionnaires, it was evident that

violation of diplomatic immunities is rampant but at the same

time agreed that some measures have been put in place to address

the problem.

b) Interviews

Interviews were administered to senior members of protocol

division. The researcher therefore carried out interview to Chief

of Protocol Ambassador Kinyanjui and Principal Counsellor of

Diplomatic Safety and Security Mr. David Musyoka.

Use of interviews helped the researcher to probe the respondents

and therefore get more in-depth information, it was possible to

clarify questions in order to get relevant response from

respondents and it was possible to get complete and honest

answers by respondents.

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From the interview of both Chief of Protocol and Principal

Counselors of Diplomatic Safety, it was evident that diplomatic

crimes were very rampant and many cases had been filed at MFA and

Diplomatic police station at Gigiri. They also admitted that the

measures put in place to curb the crimes are not very effective

due to bureaucratic process.

1.7.6 DATA ANALYSIS

Data was analyzed qualitatively. Analysis of qualitative data

collected using interviews and document analysis was an ongoing

process where emerging themes were categorized based on the

research questions. As the research progressed, some of the

questions were refined while new ones were formulated to fill in

the research gaps detected. Any questions arising during

categorization were also included.

In the early stages of fieldwork data collection, data analysis

involved developing simple categories based on the

characteristics of respondents and the events that appeared in

the research context.

1.7.7DATA PRESENTATION

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The analyzed data will be presented in form of report submitted

to the supervisor after the research is completed. Texts in prose

form, though summarized will be used to explain the research

findings.

CHAPTER TWO

2.1 HISTORIC BACKGROUND OF THE MINISTRY OF FOREIGN AFFAIRS

The Ministry has its origin in the governor’s office (Government

house, now state house) under the chief secretary Sir Walter

Coutts. The offices were later moved to Harambee House but later

relocated its present building (old treasury building) after the

ministry of finance moved to its current location.

[http//www.mfa.go.ke.]

13

The Ministry of Foreign Affairs (MFA) was established after Kenya

became independent in 1963 to articulate Kenya’s foreign policy.

For a long time, Kenya pursued foreign policy based on

fundamental principles of promotion of peaceful co –existence,

respect for sovereignty and territorial integrity of other states

and preservation of national security, peaceful settlement of

disputes, non-interference in the internal affairs of other

states, non-aligned, national interest and adherence to the

charters of the United Nations and African Union. Kenya has now

shifted its foreign policy orientation and currently the strategy

rests on four interlinked pillars of economic diplomacy, peace

diplomacy, environmental diplomacy and Diaspora diplomacy.

[http//www.mfa.go.ke.]

14

CURRENT ORGANOGRAM

15

MINISTER

ASSISTANTMINISTER

PERMANENT SECRETARY

DIRECTOR OF ADMINISTRATION DIRECTOR OF

POLITICAL AFFAIRS

1. KENYA DIPLOMATIC MISSIONS2. AGENCIES

CHIEF OF PROTOCOL

ADMINISTRATION

PERSONNEL

SECURITY

SUPPLIES

COMMUNICATION

TRANSPORT

POLITICALDIVISIONS

FUNCTIONAL DIVISIONS

AFRICA AND AU

AMERICAS

ASIA AND AUSTRALIA

MIDDLE EAST

EUROPE AND COMMONWEALTH

EAST AFRICANCOMMUNITY

IOC AND SMALL ARMS

LEGAL AFFAIRS

WELFARE,

EDUCATION ANDTRAINING

ECONOMICS & TRADE

RESEARCH SCIENCE

AND TECHNOLOGY

PRESS AND PUBLIC RELATIONS

PROTOCOLDIVISION

ICT AND RESEARCH

CENTRAL PLANNING

UNIT

HORN OF AFRICA

FINANCE AND ACCOUNTING

2.2 Ministry’s Mandate

The MFA is mandated to articulate Kenya’s foreign policy as per

the presidential circular No.1/2008 on the Organization of

government states the mandate as:

i. Foreign policy

ii. Bilateral and Multilateral Relations

iii. International and Regional Organizations

iv. Kenya embassies abroad

v. Foreign missions in Kenya

vi. Treaties, conventions and Agreements

vii. Diplomatic privileges and immunities

viii. State and official visits

ix. Protocol matters

x. Consular services

xi. Joint commissions with other countries

xii. Government spokesman of foreign affairs and global issues

16

[http//www.mfa.go.ke.]

xiii. Peace initiatives

xiv. Commonwealth affairs

xv. Kenyans in Diaspora

xvi. International jobs office

xvii. Foreign Service institute (http://www.mfa.go.ke/)

2.3 Mission and vision

The vision of MFA is to be a world- class diplomatic service in

pursuit of Kenya’s National interest globally. This is further

elaborated through its mission statement: To pursue the

interests, values of the Kenyan people, and those of Africa,

through effective diplomatic engagement. (http://www.mfa.go.ke/)

2.4 Core functions

These include Foreign policy, Joint Commissions with other

countries, international and Regional Organizations, Kenya

missions Abroad, Kenya missions in Kenya treaties, Conventions

and immunities, state and official visits, Protocol Matters,

17

peace initiatives, Pan- African Affairs, Commonwealth Affairs,

International Jobs, and Kenyans in Diaspora, Foreign service

institute. (http://www.mfa.go.ke/)

2.5 Core values

The values that guide us in discharging our duties are:

Patriotism, Team spirit, Collective Responsibity,

Professionalism, Discipline, Dignity, Integrity, and Equity.

(http://www.mfa.go.ke/)

2.6 POLICY PRIORITIES

2.6.1 Promotion of Peace and Security

Kenya’s role in ensuring international peace and security has

contributed significantly in promoting and projecting a positive

image of the country. Participation in peacekeeping missions in

various parts of the world and involvement in regional peace

initiatives has earned the nation international acclaim and

goodwill.

2.6.2 Promotion of Good Governance

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Governance issues have achieved pre-eminence in international

relations. The promotion of democratic principles, human rights,

zero tolerance for corruption, transparency and accountability,

and respect for the rule of law have become central in global

politics.

2.6.3 Promotion of Economic Interest

Economic recovery as the overriding objective of the Government

should influence Kenya’s Foreign Policy. In this regard, the

country’s Foreign Policy will seek to compliment domestic

policies that have been adapted to rejuvenate economic growth as

articulated in the Economic Recovery Strategy for Wealth and

Employment Creation (ERSWEC). (http://www.mfa.go.ke/)

2.6.4 Divisions and departments

The ministry is divided into four main departments that fall

under various divisions namely:

A) Protocol division

i. Host country and consular matters

B) Administration

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i. Human resources management

ii. Finance

iii. Economics

iv. Information Communications and Technology

v. Accounts

vi. Public Affairs and communication

vii. Procurement

viii. Central planning and Project Monitoring

ix. Legal Affairs

x. Kenya Missions Abroad

C) Political Affairs

i. International organization and Conferences

ii. Europe and Commonwealth

iii. Americas

iv. Middle East

v. Africa

vi. International Jobs and Diaspora

vii. Asia and Australia

viii. Horn of Africa

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ix. East African Community Affairs

x. Great Lakes Region

xi. China desk.

D) Foreign Service Institute

i. Human resource Development

ii. Library

iii. Research (http://www.mfa.go.ke/)

2.7 MISSIONS ABROAD

The ministry doesn’t have any branches within the country but has

established 51 fully fledged Missions to date with multiple

accreditations, bringing Kenya’s diplomatic coverage to 100

countries for purposes of ensuring Kenya’s strategic presence

throughout the world. It also maintains 8 multilateral Missions 4

of which are accredited to the United Nations and its agencies

(New York, Geneva, Vienna and Nairobi); Rome is accredited to the

food and Agriculture Organization (FAO) and the world Food

21

Programme (WFP); Brussels to European Union (EU); Addis Ababa to

the African Union (AU) and Lusaka to the Common market for

Eastern and Southern Africa (COMESA). (http://www.mfa.go.ke/)

2.8 MY AREA OF ASSIGNMENT

PROTOCOL DIVISION

During my Internship period, I worked in Protocol Registry. It is

the busiest division in Foreign Affairs and all other divisions

are linked to protocol. This is because for any meeting to take

place in the ministry, the preparations are done with the staff

at the protocol division in conjunction with the respective

division.

Protocol registry is a section under protocol division that

adopts a decentralized registry system covering protocol

functions.

The Protocol registry in the MFA serves the protocol division

which is charged with the execution of Government’s international

obligations as signatory to the Vienna and Geneva conventions on

diplomatic and consular relations. The division is also

22

responsible for the management of presidential visits abroad and

for receiving all state and official guests in the country.

The section is headed by a Records manager. The major key

services provided by protocol registry include:

Designing mail systems (incoming and outgoing mails)

Receiving incoming mails and filing them in relevant files

and distributing them to relevant action officers

Designing filing systems

Designing tracking systems

Receipt of mail (operating and sorting of mails)

Registration of mail

Storage of files/records

Custody and security of records

Dissemination of information

Preparation maintenance and reviewing a viable file

classification scheme

Preparing and review of retention/disposal schedule

Appraisal or weeding of ephemeral records and disposing of

them.

23

Effecting prompt disposal of closed records to the national

archives and documentation service and obtaining destruction

authority for value less records

All documents that are from any foreign country have to reach the

ministry through their foreign mission which coordinates with the

protocol division and the documents go through a certain chain of

command and the protocol division ensures that this protocol is

followed.

Protocol division is subdivided into smaller units for easy and

effective management of tasks, this includes: the Airport wing,

Security, Protocol Registry. The airport wing has an office

situated at the Jomo Kenyatta International airport. Their main

mandate is to ensure that the dignitaries are ushered safely from

the time they arrive into the country until they reach their

destination within the country. They are also in charge of

confirming that their accommodation is secured. Furthermore they

escort these dignitaries to their appointed meetings.

Security wing is in charge of ensuring safety of the building and

its employees. Protocol registry is in charge of diplomats

24

documents. This is where diplomatic identity cards are made; VAT

exemptions are verified and granted to the individuals who

deserve them. This is a very busy division all year round.

I worked mostly in the Protocol Registry and my main duties

included making of Diplomatic Identity Cards, I also worked on

VAT exemptions for diplomats, I was allowed to attend meetings

when different heads of states came to Kenya. The part of my

experience that I enjoyed the most was networking. Protocol is

the best place to network because when you go for the lunch,

dinner and breakfast meeting you get an opportunity to interact

with diplomats among many other important people who can be very

important contacts in the near future.

I think that this is a very organized and relevant division. This

is because it has been sub divided to ensure that specific issues

are handled by a specific teams, this avoids confusion and incase

of a problem it is very easy to know who is in charge. This helps

to keep the staff alert and hardworking because of individual

responsibility. The staff of this Division is busy all year round

and not only certain months of the year so are they always

25

relevant. It is also important to note that this is a very

dangerous division to work in terms of job security. A very small

mistake can lead to one being sent home.

In fact, protocol office never relaxes because the services

offered by this office are constant and continuous. Embassies and

International Organizations will constantly have documents like

Notifications of Departure, Notifications of Arrival, Customs

clearance documents, requests for Diplomatic Identity cards, VAT

Exemption, Airport passes, Application for visas among other

documents that always need to be worked on.

26

CHAPTER THREE

3.1 MEASURES PUT IN PLACE TO CURB DILPOMATIC CRIMES

3.1.1 THE persona non grata PROCEDURE

This has been one of the measures put in place to regulate and

control the violation of diplomatic privileges and immunities.

Persona non grata in diplomacy literally meaning "an unwelcome

person", refers to a foreign person whose entering or remaining

in a particular country is prohibited by that country's

government. It is the most serious form of censure which one

country can apply to foreign diplomats, who are otherwise

protected by diplomatic immunity from arrest and other normal

kinds of prosecution.

27

Under the Vienna Convention on Diplomatic Relations Article 9, a

receiving State may at any time and without having to explain its

decision, notify the sending State that the head of the mission

or any member of the diplomatic staff of the mission is persona

non grata or that any other member of the staff of the mission is

not acceptable. In any such case, the sending State shall, as

appropriate, either recall the person concerned or terminate his

functions with the mission. A person may be declared non grata or

not acceptable before arriving in the territory ofthe receiving

State.

While diplomatic immunity protects mission staff from prosecution

for violating civil and criminal laws, depending on rank, under

Articles 41 and 42 of the Vienna Convention, they are bound to

respect national laws and regulations. Breaches of these articles

can lead to a persona non grata declaration being used to punish

erring staff.

Article 41 states 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. They also have a duty not to interfere in

28

the internal affairs of that State. The premises of the mission

must not be used in any manner incompatible with the functions of

the mission as laid down in the present Convention or by other

rules of general international law or by any special agreements

in force between the sending and the receiving State.

Some historic examples of diplomats declared persona non grata

includes

I. In September 1952, the American Ambassador to the Soviet

Union, George F. Kennan, was declared persona non grata after

making a statement which the Soviets believed linked them to

Nazi Germany. The Soviets refused to allow Kennan to reenter

the Soviet Union.

II. In 2008, President of Bolivia Evo Morales declared U.S.

Ambassador Philip Goldberg persona non grata, claiming that the

U.S. government conspired against him and supported his

opponents

III. In October 2008 Serbia expelled ambassadors of Montenegro

and the Republic of Macedonia after these countries

recognized the independence of Kosovo. In November 2008

29

Serbia also expelled the ambassador from Malaysia after

Malaysia recognized Kosovo's independence

IV. In 2008 the Ministry of Foreign Affairs of Israel declared a

UN staffer persona non grata American Princeton University

professor emeritus of international law Richard A. Falk when

he was the United Nations Human Rights Council's United

Nations Special Rapporteur on "the situation of human rights

in the Palestinian territories occupied since 1967." Stating

this was because Falk previously had compared Israel's

treatment of Palestinians to Nazi treatment of Jews, Israel

barred him in May 2008 and December 2008. As of March 2011

Falk was still banned from Israel.

V. In January 2009, following Venezuela expelling Israeli

diplomats due to Israel's offensive in the Gaza Strip,

Israel ordered Venezuelan diplomats to leave the country,

declaring them personae non gratae in Israel"

VI. On June 8, 2009, Russia declared Finnish diplomat Simo

Pietiläinen, persona non grata, due to a controversial action

by Pietiläinen where he smuggled Anton Salonen out of Russia

30

following a long custody dispute between his Finnish father

and Russian born lover.

VII. On March 30, 2011, The Kuwaiti Minister of Foreign Affairs,

declared three Iranian diplomats, including the Ambassador,

persona non grata for allegedly spying. Upon on orders from His

Highness the Emir of Kuwait, the deputy prime minister, and

the Minister of Foreign Affairs, expelled the high ranking

Iranian diplomats

VIII. On May 1, 2011 The Libyan ambassador to the United Kingdom,

Omar Jelban, was given 24 hours to leave the country after

Foreign Secretary William Hague said he was persona non grata.

The expulsion was in response to attacks on British embassy

premises in Tripoli following the death of Colonel Gaddafi's

son in a NATO air strike

IX. On January 6, 2012 the United States notified the Venezuelan

government of the declaration of Venezuelan diplomat Livia

Acosta Noguera as a persona non grata and demanded that she

leave the United States by January 10, 2012. The declaration

was announced by the United States on January 8, and came

after an FBI investigation into allegations reported in a

31

Univision documentary. The documentary purported that

several diplomats from various countries, including Iran and

Cuba had been in contact with a group of Mexican hackers

connected with the National Autonomous University of Mexico.

X. On April 8, 2012 Israel declared German poet Günter Grass,

recipient of the 1999 Nobel Prize in Literature, persona non

grata[44] because of his poem What Must Be Said which warned

that Israel threatened an "already fragile world peace"

XI. On September 7, 2012, the Canadian government declared all

Iranian diplomats in Canada personae non gratae. The Canadian

embassy in Tehran also was closed.

(Wikipedia.org/diplomatic_immunity.htm/)

3.1.2 WAIVER OF IMMUNITY

Article 32 of the Vienna Convention allows the sending state to

waive the diplomat's immunity. The article states that the

immunity from jurisdiction of diplomatic agents and of persons

enjoying immunity may be waived by the sending State, waiver must

always be express, the initiation of proceedings by a diplomatic

agent or by a person enjoying immunity from jurisdiction under

article 37 shall preclude him from invoking immunity from

32

jurisdiction in respect of any counterclaim directly connected

with the principal claim and Waiver of immunity from jurisdiction

in respect of civil or administrative proceedings shall not be

held to imply waiver of immunity in respect of the execution of

the judgment, for which a separate waiver shall be necessary.

(Vienna Convention, 1961)

The drafters included this provision to allow a sending state to

contest civil claims in domestic courts when waiver would not

impede the daily performance of the foreign mission. The Vienna

Convention requires the sending state to make an express waiver

of this privilege. One commentator has argued, however, that a

diplomat's lawbreaking activity can constitute a constructive

waiver of diplomatic immunity. (Ben-Asher, 2008).As a matter of

practice, the sending state will not subject its diplomats to the

criminal or civil jurisdiction of the receiving state. Although

the sending state may not opt to waive the immunity of its

diplomats in the receiving state, this does not preclude the

sending state from prosecuting the crime.

As diplomatic immunity belongs to the sending state and not to

the diplomatic agent, it is only the sending state that has the

33

right to waive the immunity (Article 32(1)). Also as explained

earlier, waiver must always be expressed and once given, the

waiver is irrevocable. The requirement of the expressisverbis waiver

reduces the possibility that the receiving state mistakenly

considers, for example, an oral statement from the sending state

as a valid waiver of immunity. It has to be borne in mind that

proceedings in the same case, but on different stages, are to be

regarded as a whole and thus one waiver is enough. The ILC also

stated that it goes without saying that proceedings, in whatever

court or courts, are regarded as an indivisible whole and that

immunity cannot be invoked on appeal if an express waiver was

given in the court of first instance. (ILC Yearbook, 1958. Vol II

p.99)

History knows of very few cases when sending states have agreed

to waive the immunity of their diplomatic agents. The sending

state more likely prefers to recall the diplomat or dismiss him

from its service in such cases (Brown, 1988). The request for

waiver of immunity usually means that the criminal offence in

question is of such a degree that if the sending state does not

waive the immunity, the receiving state is no longer prepared to

34

accept the diplomat in issue as a diplomatic agent. States,

however, have waived the immunity of their diplomatic agents and

one of such instances concerns a Georgian diplomat. The second-

highest ranking diplomat for the Republic of Georgia in the

United States, Gueorgui Makharadze, was involved in a tragic

automobile accident that resulted in the death of a sixteen-year-

old girl, a Brazilian national, on 3 January 1997 in Washington

D.C. He was alleged to have been driving at a speed of eighty

miles per hour and under the influence of alcohol, but due to his

diplomatic status he was not given a breathalyzer or blood test.

This incident was followed by public uproar, particularly when

Georgia prepared to recall the diplomat. Finally, due to intense

public pressure, the Georgian president agreed, as a moral

gesture, to voluntarily waive Makhardze’s immunity. The diplomat

consequently pled guilty and currently serves his sentence in the

United States. (M.S.Zaid, 1998)

The waiver of immunity does not prevent committing of serious

crimes, but can allow justice to take its course where such

crimes have been committed. Even then there is no guarantee that

states will waive the immunity of their diplomats and as a

35

traditional rule, an undertaking by the state or its agent that

immunity will be waived if dispute arises is of no legal effect

(Lewis, 1990).

3.1.3 SELF-DEFENCE

Scholars who tend to challenge the absolute nature of diplomatic

immunity from criminal jurisdiction often argue that the

receiving state may invoke self-defense as the basis for trial

and punishment of offending diplomats. This was a popular view

among writers in the 15th to 17th centuries, when conspiracy

became quite a common crime committed by ambassadors. The main

argument was that diplomatic immunity cannot be more important

than the security of the receiving state, but nevertheless the

sovereigns did not follow this line of argument and used other

means to deal with the diplomats in question. (Mahmoudi, 1990)

However, one has to make a distinction between self-defense as a

basis for trial and punishment and as an immediate and

proportionate reaction to a crime which can endanger the lives of

other people. The latter concept is definitely more acceptable

and reasonable and it is likely to be correct to argue that the

36

offending diplomat could even be killed in self-defense.

Therefore the receiving state may, without breaching its

obligations under the principle of personal inviolability, detain

a diplomatic agent if he commits a crime, which is a flagrant

breach of law, in order to ensure both the security of the

diplomat himself and the public. This kind of detention should

not be interpreted as punishment or subjecting the diplomat to

the criminal jurisdiction of the receiving state. Consequently,

self-defence could be used as an immediate measure of prevention

in the case of threat of irreparable damage to person or property

regardless of whether the threat is directed against the state,

its agents, or its nationals. (Mahmoudi, 1990)

Support for the principle of self-defence as a remedy against the

crimes committed by diplomats can also be found in the commentary

of the International Law Commission (ILC) on the article on

personal inviolability. It states that being inviolable, the

diplomatic agent is exempted from certain measures that would

amount to direct coercion, but this, however, does not exclude

self-defence. (ILC Yearbook, 1958. Vol II p.138)

37

The ILC considered self-defence as a measure of immediate

reaction and not as a ground for trial and punishment (the latter

has actually never left the realm of the doctrine). The ICJ,

referring to the principles of personal inviolability and

diplomatic immunity from jurisdiction, also said that naturally

it does not mean that a diplomatic agent caught in the act of

committing an assault or other offence may not, on occasion, be

briefly arrested by the police of the receiving state in order to

prevent the committing of the particular crime. (ILC Yearbook,

1958. Vol II p.138)

It is very rare, but states have still availed themselves to the

principle of self-defence. One of such incidents happened in

Paris on 31 July 1978 following a hostage-taking operation by a

Palestinian inside the Embassy of Iraq. The ambassador, who acted

as a mediator, managed to reach an agreement with the Palestinian

and the latter finally left the mission premises escorted by two

French policemen. But at the moment when the Palestinian was

going to get into the police car waiting for him at the gate of

the embassy, the diplomats started to fire at them from the

38

mission premises, killing two (including a policeman) and

injuring others. The police returned fire immediately in self-

defence and consequently killed one of the Iraqis. They also

arrested three others for participation in the shooting and they

were soon expelled from France. The response of the police was

surely justified and proportional and constituted an immediate

measure to eliminate danger of injuries to person. When

commenting on this case, the government of France refrained from

any official reference to the principle of self-defence. This is

understandable, because there are no clear rules when and under

what circumstances this principle may be applied as a response to

serious crimes committed by diplomats, and any use of self-

defence entails the risk of arbitrary application. Self-defence

should be used with due regard to the requirement prescribed in

this respect in the classic Caroline case, namely a necessity of

self-defence, instant, overwhelming, leaving no choice of means,

no moment for deliberation and proportionality. ( Rousseau, 1980)

39

3.1.4 INTERNATIONAL CRIMINAL PROCEDURE

The principles of personal inviolability and of diplomatic

immunity only restrict the jurisdiction of the receiving state

and possible transit states, thus not having an ergaomnes effect

(towards everyone). Therefore, offending diplomatic agents can be

prosecuted in certain circumstances as discussed above. But in

addition to those there is one more possibility, namely where

such diplomats are subject to criminal proceedings before certain

international criminal courts.

The issue is addressed in the Rome Statute but in addition to the

question of liability, the statute considers also the question of

jurisdiction. Firstly, the Rome Statute applies equally to all

persons without any distinction based on official capacity, and

the latter in no case exempts a person from criminal

responsibility. But secondly, article 27, paragraph 2 of the Rome

Statute clarifies that “immunities or special procedural rules

which may attach to the official capacity of a person, whether

under national or international law, shall not bar the

[International Criminal] Court from exercising its jurisdiction

40

over such a person”. Therefore, a person cannot hide behind his

diplomatic immunity in order to escape criminal proceedings

before the ICC as long as the crime occurred on the territory of

a state party to the Rome Statute or the person accused of the

crime is a national of a state party to the Rome Statute (Rome

Statute Article 12) The latter possibility means that if the

sending state of the criminal diplomat is party to the Rome

Statute and the sending state has failed to initiate criminal

proceedings or conduct such proceeding independently or

impartially, the ICC can initiate its own criminal proceedings.

However, the initiation of criminal proceedings is hindered by

one factor — if the diplomat concerned is still in the receiving

state and the sending state has refused to waive its immunity.

Article 98, paragraph 1 of the Rome Statute states that the ICC

may not proceed with a request for surrender which would require

the requested state to act inconsistently with its obligations

under international law with respect to the diplomatic immunity

of a person, unless the ICC can first obtain the co-operation of

the respective third state for the waiver of immunity. In other

words, the Rome Statute does not permit the receiving or transit

41

state to violate personal inviolability or diplomatic immunity in

order to extradite the criminal diplomat to the ICC. Therefore,

such immunity can still be an obstacle to criminal proceedings,

but at least retired or former diplomats can no longer hide

behind continuing immunity in respect of official acts.

Nevertheless, the ICC is an important step ahead in securing the

prosecution of people who otherwise would escape legal proceeding

due to their privileged status. (Schabas, 2001)

3.1.5 LEGAL REFORMS: RE-NEGOTIATION OF THE 1961 VIENNA CONVENTION

A typical reaction to flagrant abuses of diplomatic immunity is

to argue that re-negotiation of the Vienna Convention ...seems to

most logical step to prevent future abuse. A number of reforms

have been proposed they vary from restricting the scope of

immunities to carrying out an inspection of the diplomatic bag.

In this regard, some proposed amendments focus on limiting

diplomatic immunity to all or some accredited persons so that it

will apply only to official acts or other limited categories of

conducts. The personal immunities of administrative and technical42

staff, and perhaps those of families, should be restricted. The

appeal of this proposal lies in the fact that a very high

percentage of crimes committed by protected persons is attributed

to low ranking officials and dependents. ( Pianin, 1987)

In the arena of Problem-specific amendments, one specific

proposal concerns the inviolability of the diplomatic bag.

Following the Libyan embassy and Dikko incidents, the British

considered an amendment that would provide for compulsory opening

of the diplomatic bag upon request following reasonable

suspicion, or return of the bag to its point of origin.306

Indeed, the existence of weapons of mass destruction - nuclear,

chemical or biological - does raise serious concerns about state

terrorism and possible abuse of the diplomatic bag. However, both

the British government and the House of Commons Committee clearly

rejected the amendment as a solution due to practical

difficulties. It was thought that securing amendments to the

Vienna Convention in accordance with proposals of the UK and

like-minded countries would be virtually impossible. Other

proposed amendments include the removal of personal immunity

43

after participation in acts of state terrorism, and withdrawal of

the inviolability of the diplomatic premises if used for acts of

state terrorism. Like the bag search proposal, and for similar

reasons, all these ideas have been strongly rejected. (Foreign

Affairs Committee, 1984)

3.1.6 TERMINATION OF DIPLOMATIC RELATIONS

The receiving state can break relations with the sending state.

These are some extreme conditions necessary for governments to

terminate diplomatic relations. Some of these include; terrorism

acts committed by sending states or their accomplices, spying

acts by sending states to receiving states or if any of the state

fails to honor an agreement previously entered.

These two incidents below provide examples of the extreme

conditions necessary for governments to terminate diplomatic

relations. Governments will not, as a matter of course, these two

incidents provide examples of the extreme conditions necessary

for governments to terminate diplomatic relations. Governments

will not, as a matter of course, resort to such a drastic

measures.

44

On April 17, 1984, demonstrators gathered outside the Libyan

People's Bureau in London to protest the practices of Colonel

Muammar Qaddafi's regime. Officials of the British government had

been forewarned that if the demonstration was allowed to take

place, Libya “‘would not be responsible for its consequences.”’

Suddenly, during the demonstration, machine gunfire erupted.

Shots were fired from inside the Libyan embassy toward the crowd.

Constable Yvonne Fletcher was killed, and eleven others injured.

This tragedy led to termination of diplomatic relations between

the United Kingdom and Libya. Similarly, the United States, after

much internal debate, broke diplomatic relations with Iran after

terrorists seized the United States Embassy in Tehran and held 52

United States nationals hostage.

CHAPTER FOUR

4.0 CONCLUSION AND RECOMMENDATIONS

4.1 CONCLUSION

Diplomatic immunity, as the majority of the international

community interprets the principle, protects diplomats in an

attempt to ensure diplomatic relations. This protection

45

essentially amounts to a license to break the law. Diplomatic

immunity protects violators from punishment for failing to obey

the law of the receiving state. The international community must

seriously rethink this policy which places not only diplomats,

but their families, staff, and personal servants above the law.

The international community, through a forum such as the United

Nations, must reevaluate the ancient principle of diplomatic

immunity. The United Nations needs to establish new guiding

principles that could preserve the basic concept of diplomatic

immunity while defining reasonable limits as to who is entitled

to immunity. The participants in this international debate must

consist not only of international legal scholars and those who

conduct diplomacy, but also the victims of diplomatic crime.

In the interim, the diplomatic crimes legislation that is pending

is a small step in attempting to confront the abuses of the

diplomatic privilege. This legislation, however, does not address

the fundamental problems inherent in the current application of

diplomatic immunity. The current interpretation of diplomatic

immunity requires fundamental change. No justification exists in

international law, or in any other principle of law or principle

46

of justice, for murder, rape, robbery, and assault to go

unpunished.

4.2 RECOMMENDATIONS AND PROPOSALS FOR REFORM

4.2.1 A CLAIMS FUND

Theorists have proposed the establishment of a claims fund to

compensate those injured by diplomats. Under this proposal,

victims who could not successfully bring actions under the

Diplomatic Relations Act could draw compensation from a nation

government funded financial pool. This proposal sought to provide

compensation for injured citizens where the diplomats who caused

injury were both immune from jurisdiction and carried no

liability insurance.

The proposal requires all states to establish a "Bureau of

Claims" to ascertain causation of injuries stemming from

instances involving a diplomat. The bureau would then determine

the amount of compensation due to the victim. The success of

this proposal requires the diplomat's participation in the

compensation procedure. The diplomat becomes a "witness" in the

47

determination of liability, without affecting diplomatic immunity

status.

The claims fund proposal contains some fundamental flaws. In all

probability, foreign missions will not voluntarily reimburse the

claims bureau. If the mission refuses to compensate the Bureau of

Claims for damages expended to compensate a victim of a

diplomat's wrongdoing, the Receiving states has limited avenues

of recourse.

4.2.2 A MANDATORY INSURANCE SCHEME

Another recommendation is the need for implementation of a

mandatory insurance scheme to solve the problem of diplomatic

immunity abuse.

The proposed scheme requires embassies to obtain insurance for

their diplomats and staff as a prerequisite to maintain

diplomatic relations with the Receiving States.

4.2.3 A PERMANENT INTERNATIONAL DIPLOMATIC CRIMINAL COURT

There proposed the establishment of a Permanent International

Diplomatic Criminal Court (court) with mandatory jurisdiction

48

over diplomats accused of committing criminal acts. This proposal

places the court in an inquisitorial mode, with the court acting

as both the prosecution and the defense. This court would have

the power to impose monetary fines and, if necessary, to imprison

diplomats in its own penal facilities.

The practical advantages of this proposal are twofold. First, the

court could operate free from the potential unfair bias of local

proceedings. Second, the use of a court outside a bilateral

relations structure precludes the termination of diplomatic

relations in extreme cases

This proposal has some distinct advantages and is one worth

further examination.

4.4.3 DIPLOMATIC CRIMES ACTS LEGISLATION

In response to controversy in the many states over abuses of the

diplomatic privilege, there is need to introduce Diplomatic Crime

Acts at national level to curb the issue.

For instance, Senator Jesse Helms of USA introduced the

Diplomatic Immunity Abuse Prevention Act (the Act) into the

Senate on October 8, 1987. In addition, various members of the

49

House of Representatives introduced similar measures. The Senate

initially approved the

Act as part of an authorization bill for the State Department,

but the proposal is currently stalled in Congress.

The act should address some of the problems associated with

diplomatic crime; the act should impose certain duties on the

Director of the State Department's Office of Foreign Missions in

order to assist local law enforcement.

The Director must maintain records on every incident involving an

immune diplomat and submit annual reports on these incidents to

Legislature; the legislation requires the Director to educate

local law enforcement officials on the levels of immunity

different diplomats possess and to assure the prosecution of

diplomats within the limitations imposed by the Vienna

Convention.

The Act should also mandate the development of procedures to

identify members of foreign missions in any state who actually

have immunity.

Finally, the legislation should authorize the President to take

necessary steps to prevent illegal use of the diplomatic pouch,

50

such as transporting weapons or illegal narcotics. This provision

is consistent with international law, as the Vienna Convention

limits the contents of the diplomatic pouch to documents and

articles intended for official diplomatic use.

51

BIBLIOGRAPHY

Black, Ian ‘Search for PC Yvonne Fletcher’s Killer Casts Old

Shadow Over Libya’s New Era’, The Guardian [online], 3 September

2010. Available from

http://www.guardian.co.uk/world/2010/sep/03/yvonne ‐ fletcher ‐

killer ‐ search

CHUCK ASHMAN & PAMELA TRESCOTT, OUTRAGE: THE ABUSE OF DIPLOMATIC

IMMUNITY 127-134 (1986).

D. Ben-Asher. Human Rights Meet Diplomatic Immunities: Problems

and Possible Solutions. Available at:

http://www.law.harvard.edu/Admissions/Graduate_Programs/publicati

ons/papers/benasher.pdf (30.7.2003).

Eric Pianin, Bounds of Diplomatic Immunity; Victims to Testify in Support of

Helm's Bill Limiting Exemptions,

WASHINGTON POST, August 5, 1987

E. Denza. Diplomatic Law: A Commentary on the Vienna Convention

on Diplomatic Relations. 2nd ed. Oxford: Oxford University Press,

1988, pp. 279–281.

52

Foreign Affairs Committee, ‘The Abuse of Diplomatic Immunities

and Privileges’ (London: House of Commons, 1984), 1984/85 HC 127.

Fox, Hazel, The Law of State Immunity 2nd Edition (Oxford, 2008).

G. SICK, All Fall Down: America's Tragic Encounter with Iran,

288-89 (1985)

J. E. Donoughue. Perpetual Immunity for Former Diplomats? A

Response to “The Abisinito Affairs: A Restrictive Theory of

Diplomatic Immunity?” – Columbian Journal of Transnational Law,

1988–1989, vol. 27, pp. 615–630.

J. Brown. Diplomatic Immunity: State Practice under the Vienna

Convention on Diplomatic Relations. – International and

Comparative Law Quarterly, vol. 37, 1988, p. 78.

McFadden, The U.N. and the City: Obligation, Opportunity and Irritation, N.Y.

Times, Sept. 20, 1983.

Satow, Ernest, Satow’s Guide to Diplomatic Practice 5th Edition (London,

1979).

53

S. L. Wright. Diplomatic Immunity: A Proposal for Amending the

Vienna Convention to Deter Violent Criminal Acts. – Boston

University International Law Journal, 1987, vol. 5, pp. 177–211.

Vienna Convention On Diplomatic Relations (1961)

W. A. Schabas. An Introduction to the International Criminal

Court. Cambridge: Cambridge University Press, 2001, p. 64.

QUESTIONNAIRE

Dear Participant,

I am Stephen Githaiga of Maseno University conducting research as

part of the partial fulfillment of the requirements for the award

of degree in International Relations and diplomacy with I.T

54

You have been selected to participate in this study. The main

purpose of the study is to examine the measures put in place to

address diplomatic crimes. The findings of the study will be used

to help all the parties concerned to address the issue and

particularly MFA will benefit in that the study will be an

additional knowledge as the study explores the challenges faced

and how they can be solved as a guide to improve and achieve

their goals and objectives

Participant declaration

I consent to voluntarily participate in this study whose purpose

has been explained to me by Githaiga Stephen of Maseno University

knowing and believing that the results of this study will only be

used for this research and shall not be used to victimize anyone

and the respondents will remain anonymous and their names shall

not be revealed to anyone.

1 BACKGROUND DATA

Gender

o Male

55

o Female

Department working?

o Privileges and Immunities Department

o Diplomatic safety and security Department

o Office of Chief of Protocol

In average, how many diplomatic related crimes are reported to

MFA per year?

o < 1

o > 2 and < 5

o > 6 and < 10

o > 10

Which are some of the crimes involving diplomats that have ever

been reported?

……………………………………………………………………………………………………………………………………………………………………………

…………………………………………………………………………………………………………………………………............

Do you think Vienna Convention on Diplomatic Privileges of 1961

has gives so many privileges to diplomats that they find it

easier to violate?

56

o Yes

o No

What measures have been put in place to regulate the violation?

o Persona non grata

o Waiver of immunity

o Self-defence

o Termination of diplomatic relations

o Legal procedures

Are the above measures effective?

o Yes

o No

Which do you think is the most effective measure?

o Persona non grata

o Waiver of immunity

o Self-defence

o Termination of diplomatic relations

o Legal procedures

57

Does the ministry have any legal procedure to ensure that the

victims of diplomatic crimes are compensated?

o Yes

o No

If yes, which?

…………………………………………………………………………….

…………………………………………………………………………….

Which are some of the recommendations you would give to curb

violation of diplomatic crimes?

…………………………………………………………………………………………………

58

59