Diplomatic Immunity in the Case of Drug Smugglers

Dr Bipin Adhikari
Special Bulletin of Narcotics Control Bureau published on the occasion of the United Nations’ International Day Against Drug Abuse and Illicit Trafficking
June 26, 2015

Problems in Nepal

A crime is principally said to be a wrong committed against society either by an overt act, omission or neglect and could result in punishment. A person who has violated a law, or has breached a rule, is said to have committed a criminal offense. Every crime has a victim who suffers some harm at the hands of the offender - be it physical, financial, psychological or emotional. Drug smuggling is a crime. It is prohibited by law. This crime also has victims. 

The narcotic drug related legal regime in Nepal is built under the provisions of Narcotics Drug Control Act 1976.  Under this law, the cultivation, production, preparation, manufacture, export, import, purchase, possession, sale, and consumption of most commonly abused drugs is illegal. The Act has already been amended several times. The amended version of the Act is informed by UN Convention on Narcotic Drugs 1961 as amended by the protocol of 1972. Nepal is also a party to United Nations against illicit trafficking of narcotic drugs and psychotropic substances of 1988. The country has consistently devised and implemented national policy on drug control. The drug administration has been regularly strengthened. The regime that has been prohibits, except under license, the production, supply, and possession of many, but not all, substances which are recognized as drugs, and which corresponds to international treaty commitments in the Single Convention on Narcotic Drugs 1961, the Convention on Psychotropic Substances 1971, and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988. Drug prohibition law is based on the view that some drugs, notably opium poppy, coca, and substances derived from these plants, are so addictive or dependence inducing and so dangerous, in terms of potential effects on the health, morality and behavior of users, that they should be rarely, if ever, used.

Despite the legal regime in place, and supposedly functioning drug administration, Nepal continues to deal with challenges in this sector. Every year there are numerous cased of violation of the drug prohibition law. There is an illegal trans-national industry supplying prohibited drugs for recreational use.

One of the problems in the enforcement of drug prohibition law is created by diplomats, or presumed diplomats, who claim diplomatic immunity on finding the violation of the drug prohibition law. Their institutions, particularly the friends and colleagues working there, very often insist on immunity. There is always a vague understanding among the ordinary people about the concept of diplomatic immunity. Movies like Lethal Weapon 2 have made apparent the ills relating to abuse of diplomatic immunities in the society. This movie, for example, features evil diplomats who use their immunity as a "Get Out of Jail Free" card subsequent to committing crimes such as murder, rape, drug and firearm trafficking.

Complexities surrounding Diplomatic Immunity

Diplomatic immunity is an established norm in the international relations. This norm has been institutionalized by the Vienna Convention on Diplomatic Relations of 1961. It defines a framework for diplomatic relations between independent countries. The framework specifies the privileges of a diplomatic mission that enable diplomats to perform their function without fear of coercion or harassment by the host country. This forms the legal basis for diplomatic immunity. This immunity limits the degree to which foreign government and international organization officials and employees are subject to the authority of police officers and judges in their country of assignment. In reality, this immunity is granted to keep diplomats from being harassed while they do their work in unfriendly nations. It makes sense. The question, however, is whether, a person who has been caught with drug smuggling in the host country mean that an official with diplomatic immunity, as is often assumed, can get away with anything? Not exactly.

At this juncture, it has to be noted that most diplomats are courteous law abiding citizens of the sending country dedicated to upholding the integrity of their missions in the host country. In most cases, the diplomats respect and follow the rules and regulations of the host nations. For centuries, diplomats have played a vital role in establishing ties between nations, ending wars, providing relief aid, financial assistance and bridging the gap between diverse cultures. As per the current regime, diplomats, their families, and staff are granted exemption from arrest or detention by local authorities (Art. 29); their actions not subject to civil or criminal law. However, as there are two sides to coin, the Vienna Convention allows for an incredible amount of personal liberties to the diplomats which can be easily abused. Furthermore, judging by past cases, the ratio of abuses such as drug trafficking, kidnapping, rape, and murder is on the rise.

There are cases aplenty of widespread abuses from the diplomats in their respective host nations which yielded no punishment from either the host nation or the sending nation. For example, the Venezuelan General wanted in the United States for drug charges was arrested in Aruba. However, following the Venezuelan government's protestation of his diplomatic immunity, he was subsequently released. Similarly, in 1984, an Egyptian foreign minister's bag in Rome was discovered illegally smuggling a drugged Israeli citizen. The Israeli citizen was subsequently released and no action was taken due to diplomatic immunity. Similarly, in 1976, North Korean diplomats were caught in Norway smuggling marijuana. However, no action was taken due to diplomatic immunity. There are other reports of widespread abuses which have highlighted the rapidly degenerating nature of this, once negligible, problem. In favor of diplomatic immunity, experts often cite extraterritoriality and functional necessity as justifications. Be that as it may, it has become increasingly apparent that viable solutions to the problems are needed.

In light of this, let us now focus our attention to the possible avenues, both the host country and the sending country can use, in situations when a diplomat is arrested for committing a crime. The first option, as per Article 32 of Vienna Conventions, is to request a waiver of the diplomatic immunity from the sending country. This will then allow the host nation to prosecute the diplomats. Second option is to declare the diplomat in question "persona non grata" (unacceptable). This forces the sending nation to either recall the diplomat or terminate his/her appointment altogether. The third option, albeit extreme, is to severe all diplomatic ties between the respective nations. All three avenues are problematic. A sending country is often highly reluctant to waiver the immunity amidst fear of loss of reputation whilst the second and third options are impractical in the 21st century as rejection of diplomatic mission causes unwanted tension.

So, what can be done to solve this widespread abuse? Well, there have been discussions in the international community about various proposals to reform the status quo including insurance policies and establishment of claims fund. However, these ideas are geared more towards remunerating the victims of the crime than punishing the perpetrators. Another alternative proposed is the idea of an International Diplomatic Court to oversee matters pertaining to abuses of this kind. This too has been quashed as a highly ambitious and unattainable proposal. There are inherent problems with establishing an International Diplomatic Court including getting the perpetrator to appear in court, finding an appropriate unbiased jury, ascertaining the universality among diverse state practices to the management of infrastructural resources. 

Exceptions to the Vienna Convention?

Some countries have made reservations to the Vienna Convention on Diplomatic Relations, but they are minor. A number of countries limit the diplomatic immunity of persons who are citizens of the receiving country. As nations keep faith to their treaties with differing zeal, other rules may also apply, though in most cases this summary is a reasonably accurate approximation.[5] The Convention does not cover the personnel of international organizations, whose privileges are decided upon on a case-by-case basis, usually in the treaties founding such organizations. The United Nations system (including its agencies, which comprise the most recognizable international bodies such as the World Bank and many others) has a relatively standardized form of limited immunities for staff traveling on U.N. laissez-passer; diplomatic immunity is often granted to the highest-ranking officials of these agencies. Consular officials (that do not have concurrent diplomatic accreditation) formally have a more limited form of immunity, generally limited to their official duties. Diplomatic technical and administrative staff also have more limited immunity under the Vienna Convention; for this reason, some countries may accredit technical and administrative staff as attaché.

Other categories of government officials that may travel frequently to other countries may not have diplomatic passports or diplomatic immunity, such as members of the military, high-ranking government officials, ministers, and others. Many countries provide non-diplomatic official passports to such personnel, and there may be different classes of such travel documents such as official passports, service passports, and others. De facto recognition of some form of immunity may be conveyed by states accepting officials traveling on such documents, or there may exist bilateral agreements to govern such cases (as in, for example, the case of military personnel conducting or observing exercises on the territory of the receiving country).

Formally, diplomatic immunity may be limited to officials accredited to a host country, or traveling to or from their host country. In practice, many countries may effectively recognize diplomatic immunity for those traveling on diplomatic passports, with admittance to the country constituting acceptance of the diplomatic status.

Strictly speaking, the principle of diplomatic immunity does not apply to all foreign government or international organization officials and employees. When it does apply, it applies differently to different categories and subcategories of such persons and their families, dependent on circumstances.

(Note: Diplomatic immunity is also to be distinguished from "sovereign immunity," which applies to the person and property of foreign governments themselves and is not discussed in the present article.)

Diplomatic Immunity for Embassy Personnel

Diplomatic agents – that is, high ranking embassy officials (ambassadors, for example) who serve the function of dealing directly with their host country's officials on behalf of their home country – enjoy the highest degree of immunity. The same applies to their family members.

The police cannot detain them, arrest them, or search or seize their houses and other property. Diplomats cannot be prosecuted or otherwise forced to appear in criminal court. Nor can they be sued in civil courts, except for their personal (non-official) involvement in certain commercial, real-estate, or inheritance-related matters, or for their separate professional activities.

So, for example: An ambassador who is sued for failing to pay her personal home mortgage premium may lose title to her house but may not be forced to pay damages and may not be evicted.

A second category of embassy personnel, the administrative and technical staff (secretaries, for example) who directly support diplomatic activities, enjoy the same immunity from police actions and criminal courts, but a lesser degree of immunity from civil courts. They can be sued like anyone else, except for acts performed in connection with their official function. (No such exception applies to their family members.) Accordingly, an embassy secretary who fails to pay his personal home mortgage premium may not only lose his title but also be sued for damages – though he may not be evicted.

Yet other embassy employees (chauffeurs, for example), who only indirectly support diplomatic activities, enjoy the lowest degree of immunity. They have (either criminal or civil) immunity only for acts performed in connection with their embassy role. Their family members enjoy no immunity at all.

There are exceptions. In rare cases, both the second and third categories of embassy personnel above may enjoy as much immunity as diplomatic agents. But this only happens when the home country and the host country enter a special agreement (or treaty) for that purpose. Moreover, home country governments can waive diplomatic immunity.

Finally, no immunity applies to embassy employees (or the family members of such employees) who are nationals or permanent residents of the host country.

Diplomatic Immunity for Consular Personnel

Consular personnel generally enjoy less immunity than embassy personnel.

Consular officers (career consuls and other foreign government officials responsible for issuing travel documents, promoting commerce or tourism, and similar functions) enjoy full immunity for acts performed in connection with their official function. However, they are otherwise fully subject to criminal prosecution, except that they may be detained only in felony cases. (No such exception applies to their family members, who enjoy no immunity at all.)

Their property can be searched by police officers. They can also be sued like private citizens – although they are prohibited (by international law) from engaging in commercial or professional activities outside their official functions.

Consulates' administrative and technical staff are not prohibited from engaging in commercial or professional activities outside their official functions. However, they enjoy immunity only for acts performed in connection with their official functions.

Other consular employees enjoy almost no immunity, except that they cannot be forced to appear as witnesses in court for purposes of providing evidence about official consular affairs.

Here again, there are exceptions. Consular personnel may acquire almost as much immunity as diplomatic agents based on a special treaty between their home country and their host country.

No immunity applies to consular personnel who are nationals or permanent residents of the host country, except that honorary consuls enjoy immunity for acts performed in connection with their official functions.

Diplomatic Immunity for International Organization Representatives and Personnel

Interestingly, international law is often less important than national laws when it comes to defining the immunity of representatives and personnel of international organizations such as the United Nations or the International Monetary Fund.

Under U.S. law, high-ranking international government representatives (members of national missions who are assigned to international organizations) usually enjoy as much immunity as diplomatic agents, while all other national mission staff enjoy immunity only for acts performed in connection with their official functions.

Similarly, most international organization personnel enjoy immunity only for acts performed in connection with their official function, while some (but not all) high ranking officials may sometimes enjoy almost as much immunity as diplomatic agents. For example: the Secretary General of the United Nations enjoys full diplomatic immunity, but the Director of the International Monetary Fund (as we saw in the case of Dominique Strauss-Kahn in 2011) does not.

What Diplomatic Immunity Does Not Mean

Diplomatic immunity does not mean that its beneficiaries can do whatever they want and get away with it. Police officers are allowed to disregard it whenever necessary to prevent a grave crime or an imminent danger to public safety.

In cases of traffic violation, even though diplomatic vehicles may not be impounded, police officers are still allowed to issue citations, and host governments may suspend driving privileges.

In addition, host countries can request that home countries waive a crime suspect's immunity. In the alternative, host countries may expel the suspect from their territory.

Finally, especially when the principle extends only to acts performed in connection with official functions, it is important to note that it is host country judges themselves who get to define the limits of immunity.

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