Diplo­matic im­mu­nity un­der spot­light

Lesotho Times - - International -

LON­DON — Imag­ine break­ing the law and no-one can stop you. Ig­nor­ing park­ing tick­ets. Never pay­ing tax. Get­ting away with mur­der.

It’s all pos­si­ble, in the­ory, if you’re an am­bas­sador. Un­der the 1961 Vi­enna Con­ven­tion, diplo­mats are im­mune from pros­e­cu­tion in their host coun­try.

The sys­tem has long proved con­tro­ver­sial — not least since PC Yvonne Fletcher was shot dead out­side the Libyan Em­bassy in 1984 — and is once again un­der the spot­light thanks to an un­usual bat­tle fought in Lon­don’s courts.

Saudi busi­ness­man Sheikh Walid Juf­fali launched a diplo­matic im­mu­nity de­fence af­ter his ex-wife, for­mer Pirelli model Christina Estrada, made a claim on his es­ti­mated £4bn for­tune. The court heard they sep­a­rated in 2013.

In a move that had led to raised eye­brows in the press, Juf­fali was ap­pointed in 2014 by the Caribbean is­land of Saint Lu­cia as its per­ma­nent rep­re­sen­ta­tive to the In­ter­na­tional Mar­itime Or­gan­i­sa­tion (IMO), which has its sec­re­tar­iat in Lon­don.

In Fe­bru­ary, Mr Jus­tice Hay­den ruled at the High Court this diplo­matic sta­tus was an “an en­tirely ar­ti­fi­cial con­struct” as Juf­fali had “no pre-ex­ist­ing con­nec­tion to St Lu­cia” and there was no ev­i­dence that he had “any knowl­edge or ex­pe­ri­ence of mar­itime mat­ters”.

Last week, the Court of Ap­peal said the judge had been wrong to rule Juf­fali was not “en­ti­tled in prin­ci­ple to im­mu­nity”.

How­ever, it dis­missed the ap­peal on the ba­sis that his diplo­matic sta­tus was ir­rel­e­vant as Juf­fali was a per­ma­nent Bri­tish res­i­dent and thus li­able to civil ac­tion, as per­ma­nent res­i­dents serv­ing as diplo­mats are im­mune only from pros­e­cu­tion for of­fi­cial acts.

Af­ter the ver­dict, a spokesman for Juf­fali said he was “com­mit­ted to main­tain­ing his diplo­matic du­ties” and noted that St Lu­cia’s prime min­is­ter had tes­ti­fied to the “ex­em­plary man­ner” in which Juf­fali had car­ried out his role.

How­ever, he was “dis­mayed” by the court’s de­ci­sion that he was a UK per­ma­nent res­i­dent.

In a state­ment, the gov­ern­ment of St Lu­cia said it “has, and will al­ways, fol­low full due process” in ap­point­ing diplo­mats and Juf­fali’s case was no dif­fer­ent. The IMO de­clined to com­ment.

The con­ven­tion of diplo­matic im­mu­nity — in­tended to pre­vent em­bassy staff be­ing ha­rassed when op­er­at­ing in hos­tile coun­tries — is a long-stand­ing corner­stone of in­ter­na­tional re­la­tions that dates back cen­turies prior to be­ing en­shrined in the Vi­enna Con­ven­tion.

How­ever, the Juf­fali case is not the first time diplo­matic im­mu­nity — which cov­ers around 25,000 peo­ple in the UK, in­clud­ing fam­i­lies of some diplo­mats as well as the of­fi­cials them­selves — has at­tracted scrutiny.

In 2010 the then-for­eign Sec­re­tary Wil­liam Hague re­leased de­tails of 18 crimes — in­clud­ing sex­ual as­sault, hu­man traf­fick­ing, threats to kill and drink-driv­ing — of which diplo­mats in the UK had been ac­cused dur­ing 2010.

In De­cem­ber it was re­ported that em­bassy work­ers had run up £95m of un­paid con­ges­tion charges in Lon­don — be­cause they ar­gue it is a tax, not a charge for ser­vice, and thus ex­empt un­der the Vi­enna Con­ven­tion.

It was ruled in Fe­bru­ary that be­cause of his diplo­matic sta­tus, Sheikh Ha­mad Bin-jas­sim Bin-jaber Al Thani — one of the world’s rich­est men and the for­mer prime min­is­ter of Qatar — could not be sued in the UK over claims a Bri­tish-qatari dual na­tional was falsely im­pris­oned.

Sheikh Ha­mad and the state of Qatar have de­nied any wrong­do­ing, with lawyers for the bil­lion­aire say­ing the man in ques­tion had been treated “in the man­ner that ac­corded fully with Qatari and in­ter­na­tional law”.

Diplo­matic im­mu­nity ver­sus lo­cal law Hu­man rights bar­ris­ter Ge­of­frey Robert­son QC says the Vi­enna Con­ven­tion made sense in the days of the Cold War — when em­bassy staff work­ing in hos­tile na­tions were at risk of be­ing framed or caught in hon­ey­traps — but has passed its sell-by date.

“What it does is put diplo­mats above the law,” he says. “It’s a breach of Magna Carta. “I think the Vi­enna Con­ven­tion needs re­draft­ing to limit diplo­matic im­mu­nity. I don’t think diplo­matic im­mu­nity should ex­tend to any civil case. It should only ex­tend to crim­i­nal cases in lim­ited cir­cum­stances.”

He also ar­gues that the def­i­ni­tion of “diplo­mat” is too wide — en­com­pass­ing not just am­bas­sadors rep­re­sent­ing their na­tion in overseas em­bassies, but also at spe­cialised agen­cies of the United Na­tions and other in­ter­na­tional bod­ies.

And while it’s un­usual for states to nom­i­nate for­eign na­tion­als as diplo­mats, as in the case of Juf­fali, there are con­cerns that the sys­tem could po­ten­tially be ex­ploited by those try­ing to evade the court process.

“There are a num­ber of coun­tries around the world where you can ef­fec­tively buy cit­i­zen­ship,” says so­lic­i­tor Mark Stephens, a for­mer pres­i­dent of the Com­mon­wealth Lawyers As­so­ci­a­tion.

There’s a danger this could be taken a step fur­ther for the right price, he be­lieves. “If you are a Mr Big be­hind a multi-mil­lion-pound fraud it be­hoves you to get a diplo­matic pass­port so you have diplo­matic im­mu­nity.”

In prac­tice, how­ever, am­bas­sado­rial sta­tus does not put you en­tirely out­side the bound­aries of the law — un­like Joss Ack­land’s drug-smug­gling South African con­sul-general in that de­fin­i­tive big-screen por­trayal of diplo­matic state­craft, Lethal Weapon 2, who waves his diplo­matic pass­port while com­mit­ting ne­far­i­ous deeds.

The Vi­enna Con­ven­tion al­lows host na­tions to de­clare per­sona non grata and ex­pel diplo­mats — who, af­ter all, are civil ser­vants, li­able to be pros­e­cuted for se­ri­ous of­fences in their own coun­try.

In ex­cep­tional cases, they can be brought to jus­tice in the host na­tion. Af­ter Ge­or­gian diplo­mat Gue­orgui Makharadze, who had been drink­ing heav­ily, killed a teenager in a car crash in Wash­ing­ton, DC in 1997, US au­thor­i­ties asked Ge­or­gia to re­voke his im­mu­nity.

They did so, and Makharadze pleaded guilty to in­vol­un­tary man­slaugh­ter.

And in Novem­ber 2015 a Libyan man was ar­rested on sus­pi­cion of con­spir­acy to mur­der PC Fletcher as a re­sult of new lines of in­quiry open­ing up fol­low­ing fall of the Col Muam­mar Gaddafi’s regime.

Sup­port­ers of the sys­tem say it is vi­tal to pre­vent am­bas­sadors and other em­bassy staff be­ing ha­rassed and hauled be­fore courts on spu­ri­ous grounds in an ef­fort to pre­vent them do­ing their job.

“It’s an essen­tial tool. It pro­tects our diplo­mats serv­ing abroad,” says Craig Barker, pro­fes­sor of in­ter­na­tional law at Lon­don South Bank Univer­sity.

He adds that it is up to the For­eign and Com­mon­wealth Of­fice (FCO) to block any diplo­matic ap­point­ments that ap­pear sus­pi­cious or to ex­pel any who com­mit se­ri­ous of­fences.

A spokesman for the FCO says diplo­matic im­mu­nity al­lows Bri­tish of­fi­cials to rep­re­sent the UK’S na­tional in­ter­ests around the world, even in hos­tile regimes.

He adds that the sys­tem is not in­tended to ben­e­fit in­di­vid­u­als per­son­ally and the Vi­enna Con­ven­tion ex­pects diplo­mats to abide by the law of their host coun­tries.

“The UK takes a firm line with diplo­matic mis­sions whose diplo­mats com­mit of­fences and in the most se­ri­ous cases we will de­mand they with­draw the in­di­vid­ual from the coun­try.”

For­eign Sec­re­tary Philip Ham­mond had crit­i­cised the high court judge’s de­ci­sion to strip Juf­fali’s im­mu­nity, and the FCO sub­mit­ted an opinion to the Court of Ap­peal say­ing the orig­i­nal High Court judge had “erred” in do­ing so. The FCO did not, how­ever, in­ter­vene in the rul­ing that Juf­fali was in­el­i­gi­ble for im­mu­nity due to be­ing a UK res­i­dent.

The sys­tem may be as old as state­craft it­self, but the de­bate is likely to con­tinue.

— BBC

Saudi busi­ness­man Sheikh Walid Juf­fali and ex-wife Christina Estrada.

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