Diplomatic privileges and immunities: booze and abuse
Immune from what?
In the preceding article about the question whether diplomats enjoy immunity (in fact they don’t) from the obligation to pay the London congestion charge, I have outlined some of the ways in which accredited diplomats, while required under international law to respect and obey the rules and laws of the country where they serve, are not generally subject to the jurisdiction of the host country’s courts, may not be arrested or searched, nor taxed. Their houses and offices may not be entered by the local police and their documents and communications may not be searched or tampered with. The magisterial Dictionary of Diplomacy (see the hat-tips footnote to the preceding article) in its entry on diplomatic privileges and immunities identifies three categories of these:
First, there are certain inviolabilities enjoyed by a diplomatic mission and its diplomatic staff. These apply to official premises and private residences, the mission’s archives and documentation, and its correspondence, none of which may be entered or tampered with by the receiving state. The persons of diplomatic agents and of their family members residing with them are also inviolable, in the sense that they may not be arrested or detained. Secondly, such individuals enjoy immunity from the criminal jurisdiction of the receiving state and, in most respects, from its civil and administrative jurisdiction. Thirdly, they enjoy certain privileges, such as exemption from dues, taxes, and many customs duties, from the liability to undertake public service, and (generally) from having to submit their baggage to inspection at frontier controls.
These distinctions may be academically useful, but in practice all three categories entail certain specific immunities or exemptions from obligations imposed on ordinary local people, and many diplomats tend to be wary of describing any of them as a ‘privilege’, with its implied connotation of an optional or luxury item not strictly necessary for the performance of a diplomat’s functions. However described, all these exemptions have been regarded for centuries as essential for the protection of diplomats against undue pressures that might otherwise be exerted by the host country’s government – pressures applied directly on the individual diplomat concerned, and thus indirectly on his government. An embassy and its diplomatic staff are in a sense extensions of the government and country that they represent, stationed abroad and therefore physically at the mercy of the host country’s government, police and security services. Diplomats are always potentially in the position of hostages, especially when relations between the host government and the government represented by the diplomats are bad. Occasionally, despite the protection notionally guaranteed by virtually all states to diplomats under the Vienna Convention on Diplomatic Relations of 1961, a particular country’s diplomats may actually be taken hostage and used as pawns in the attempt to extort specific concessions from their government, as happened when the then Iranian government took the staff of the American embassy hostage in 1979. As the President Jimmy Carter Library and Museum website records,
On November 4, 1979, Iranian militants stormed the United States Embassy in Tehran and took approximately seventy Americans captive. This terrorist act triggered the most profound crisis of the Carter presidency and began a personal ordeal for Jimmy Carter and the American people that lasted 444 days.
It is a measure of the importance that almost all governments attach to the inviolability of their diplomats serving abroad that the United States sent an expeditionary force to Iran to try to rescue the diplomats by military force.
What’s the point?
Diplomats have been guaranteed a special status of inviolability and immunity since the earliest days when an ambassador went as the personal representative of his monarch to deliver a message to another monarch and to take back the reply: even, or especially, in time of war or imminent war, the person of the visiting ambassador could not be harmed, detained or maltreated, since such treatment would amount to the maltreatment of one monarch by another, as well as defeating the object of a mutually convenient procedure for exchanging messages, assurances, threats, proposals, and the rest of the small change of diplomacy. The 1961 Vienna Convention was a codification of measures and principles that had been an accepted part of customary international law for centuries. Diplomats, the last line of defence against violence in international affairs, are an endangered species when nations quarrel, and worth the effort of preservation.
As the Dictionary of Diplomacy explains,
the justification for treating diplomats in this special way is that such measures are necessary for diplomatic functions to be executed effectively. This is not always understood by a state’s public opinion, which can lead to adverse comment on the matter.
The temptation for a cynical government to exploit the availability on its soil of vulnerable, usually unarmed diplomats from another country with which it is quarrelling or in ideological conflict, in order to influence that country’s behaviour or policies, may be very strong. At the height of the cold war in 1971 the British government, after delivering several warnings of what was to come if the Soviet government failed to remove numerous spies from the UK, gave 105 Soviet intelligence officers notice of their expulsion and gave them two weeks to pack their belongings and depart. A stunned Soviet government, not expecting such robust treatment at the hands of a second-rank power like Britain, reacted angrily, demanding that the expulsion orders be retracted and threatening dire but unspecified retribution if the expulsions nonetheless went ahead. During the two weeks’ grace allowed to the 105 Russian spies, the Soviet government put every possible pressure on Britain’s diplomats in Moscow (of whom I was one) in the hope of forcing our masters in London to relent. Four British diplomats in Moscow (including me) were singled out for constant harassment throughout the two weeks before the 105 left England (in a specially chartered ship). But there was no overt breach of our Vienna Convention immunities: if we were effectively hostages to the Russians in Moscow, our Soviet diplomatic opposite numbers in London were just as much potential hostages to the British government, even after the 105 had departed. The principle of reciprocity is a vital diplomatic tool, and often an added protection for vulnerable diplomats in hostile territory. To quote the Dictionary again:
if state A’s diplomats are treated in a less-than-proper manner by state B, it is highly likely that state B’s diplomats in state A will suffer the same fate. So important is the role played by diplomats, and so keen the wish of sending states to guarantee their personal safety, that it is extremely unusual for a state not to take great care to guard against that eventuality.
Even in times of somewhat less strained Anglo-Soviet relations, the Soviet authorities were not averse to a little gentle harassment of western diplomats in Moscow, partly to impress on them who was boss, partly as a reminder that potentially uncomfortable penalties could be imposed on a western diplomat whose activities might embarrass the Soviet Union or whose attitudes seemed to the Kremlin or to the KGB to be unduly hostile. Our cars, easily identified as from a western embassy, were repeatedly, routinely stopped by uniformed militiamen who would demand to see our ‘dokumenty’ – our diplomatic identity cards and our car licence and insurance documents. Knowing that once any of these precious papers were handed over, they might well not be returned on the pretext of some imaginary irregularity, we never allowed the militia to handle our ID cards, simply showing them through the car window: and we always kept the car documents securely locked up in the Embassy, inviting the militia to address any complaints or demands to the Soviet Foreign Ministry. And we never obeyed an instruction to get out of the car. Without the protection of our Vienna Convention rights, such essentially minor harassments could easily have escalated into serious interference in our everyday lives and work.
Exemption from local taxation, excise and duty payments is perhaps the most controversial of the diplomat’s immunities: it is the nearest that these exemptions appear to come to a ‘privilege’. But here too the host government’s right to impose taxes on a foreign country’s diplomats could be a potent instrument of pressure. It would not be difficult to put together an exorbitant demand for allegedly unpaid taxes designed to intimidate and deter an otherwise recalcitrant diplomat prone, for example, to embarrassing public criticism of the host government’s human rights record or of its failure to deal with rampant local corruption. Think Craig Murray in Uzbekistan, Edward Clay in Kenya or our British diplomats in President Mugabe’s Zimbabwe. The fact that diplomats can buy their booze duty-free may seem an unnecessary luxury, and so no doubt it is, but excise duty on alcohol is just another form of tax, and it would be an impossible task to pick and choose among a host of different taxes and duties to decide which ones diplomats should be liable to pay, and from which ones they should be exempt. In any case, British diplomats abroad get no personal benefit from their entitlement to duty-free liquor, since the calculation of their local cost of living allowances takes the exemption into account: if they pay less for their Scotch, they receive correspondingly less in allowances, so the benefit accrues to the British taxpayer, not the diplomat. Moreover much the greater part of the booze bought by British (if not some other countries’) diplomats is directed down the throats of the foreign dignitaries (or visiting British politicians and businessmen) whom our diplomats are required to entertain, part of the necessary lubrication of international relations and the promotion of peaceable amity among the nations.
It should also be remembered that many of the exemptions and immunities enjoyed (if that’s the right word) by diplomats apply only to their official functions and activities. Private contracts and commitments may be enforceable in the civil courts as with anyone else. The borderline between official and private business may however often be blurred: David Tothill, researcher, historian and former diplomat, has written an entertaining account of a long-running controversy that largely turned on just such ambiguity.
Sir Henry Wotton >
"An ambassador is an honest man, sent to lie abroad for the good of his country"
Abuse of immunities
It may be worth repeating one of the points that emerges from the preceding discussion of diplomatic immunity (or lack of it) in relation to the congestion charge. Abuse of immunities and exemptions such as these is always possible, and some abuse inevitable: diplomats as a race are not necessarily and in all circumstances less venal than businessmen or politicians. But it’s a myth that a diplomat who abuses his position is necessarily safe from exposure and retribution. If he breaks the host country’s laws, he can’t automatically be taken to court, charged, tried or sent to prison, nor even fined. But a complaint by the host government to the offender’s ambassador (repeated in more serious cases in a complaint to the offender’s Foreign Ministry in his country’s capital) is likely in most cases to lead to his withdrawal and return to his native land, perhaps for punishment, almost certainly for disciplinary action. If a complaint fails to achieve a remedy, the host government might try the embarrassment potential of negative publicity, something most ambassadors will dread. If that too fails, the host government may demand that the offender’s ambassador, or his own government, should agree to waive his immunity so that court or other punitive action may be taken against him locally. Article 32 of the Vienna Convention provides that
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State.
2. Waiver must always be express.
3. 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 jurisdiction in respect of any counter-claim directly connected with the principal claim.
4. 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 judgement, for which a separate waiver shall be necessary.
And, finally, if the offender’s government and ambassador refuse to waive his immunity, it’s always open to the host government to expel him. Expulsion from a much sought-after posting such as London, Paris, Berlin or Washington on grounds of illegal or even just inappropriate behaviour is normally a serious matter, and may spell the end of a diplomatic career. On the other hand, expulsion from a post where diplomats suffer hardship, ill-health, harassment, restrictions or a foul climate, or all of the above, may not always be regarded by the expellee as an unmitigated disaster – especially if the grounds for the expulsion are merely a tit-for-tat measure in retaliation for expulsions by the other side, and thus ‘nothing personal’. During the two tense weeks in 1971 when the Soviet authorities were applying every possible pressure on British diplomats in Moscow in the hope of forcing the British government to rescind the expulsion orders against the 105 Russian spies, the embassy staff in Moscow were bracing themselves for the impact of the inevitable Soviet retaliation once the expulsions had actually taken place. On the Sunday of the second week, as the 105 in England were finishing their packing, the Sunday Express published a cartoon by the immortal Giles showing the staff of the British embassy in Moscow clustered in the entrance hall of the embassy to greet their ambassador on his return from the Soviet Foreign Ministry with news of the Soviet response to the expulsions of the 105. “Bad luck, chaps,” the ambassador is saying, “only four of us expelled.”