SHOULD DIPLOMATIC IMMUNITIES PREVAIL OVER HUMAN

RIGHTS?

-J.Shilpa Singh

ABSTRACT

The idea of diplomacy begins with mutual understanding between people. When this concept is
looked at the international level, between states, to promote international cooperation & benefit
to each other, stands at a different footing. The states involving in making connections use
different diplomatic tools. Moreover, this has been structured by introducing various treaties &
conventions. Further, the people involved in diplomacy are given immunities & privileges, with
fewer liabilities. It had been accepted that these diplomats require such privileges to protect them
from local jurisdiction, as they would be easy targets in a foreign nation. But, in recent times,
diplomats have started to abuse these privileges. This has violated human rights of people. Due
to these immunities, many acts in the name of diplomacy had gone unpunished. Now, there is an
urgent need to balance the abuse of diplomatic power & protect the rights of humans affected.

The dilemma arises in this situation is that, in case of conflict between violation of human rights
& diplomatic immunity, which one of them will prevail. The article here has tried to come up
with cases to clear air about these two concepts & analysed the problems related to these. The
abuse of diplomatic power can be curtailed by availability of effective judicial remedies. But,
when diplomats are not subjected to local jurisdictions, then how they can be held liable for the
wrongs they commit?
 1. INTRODUCTION

The concept of diplomatic immunity is an idea based on a mutual understanding between

different societies. This mutual understanding is about bringing cooperation at an international
level between the societies where a person on behalf of a society negotiate & argue for their
cause to another. As the connections between these societies grew stronger the necessity for
diplomatic tools also grew. This concept became customary law to later evolve to being
structured by various treaties.

By eighteenth century, European states had broadly outlined the customary international law
regarding the privileges and immunities of diplomats. It was generally accepted that these
immunities only protected diplomats from local jurisdiction, however, gave them no authority to
disregard the law. This effectively meant that the diplomat was under no obligation to obey the
laws, a situation that has remained unchanged to the present day. Although these broad rules
continued unchanged, states practices varied considerably on matters of detail. Then, in 1961,
forty countries signed the landmark Vienna Convention on Diplomatic Relations.
Recent events have shown an unfortunate tendency on part of the diplomats to disregard the law
of the receiving state & invoke their immunity to escape any sort of liability. There are powerful
reasons for a diplomat to hold this immunity; but these reasons should be balanced against the
need to prevent abuse of diplomatic power & the need to protect the rights of the victims
affected. 1

2. WHAT DO YOU MEAN BY DIPLOAMTIC IMMUNITY?

The concept of diplomatic immunity from civil and criminal proceedings has established itself as
a fundamental of customary diplomatic law.

There are two types of the diplomatic immunities, namely, ratione personae & ratione materiae.

Any ordinary exemption of a foreign diplomat from local jurisdiction, under international law,
may be termed diplomatic immunity ratione personae in that it applies to these persons
irrespective of the nature of the acts which are the subject of legal proceedings. A complete
immunity saves for three exceptions in civil matters have been provided for in Article 31 of the

1
Leslie Shirin Farhang, Insuring against Abuse of Diplomatic Immunity, 38 Stanford Law Review 1517, 1517 (1986)
Vienna Convention on Diplomatic Relations2. However, this personal exemption comes to an
end with the termination of the functions of the diplomatic agent, either when he leaves the
country to which he is accredited or (if he stays on) when a reasonable period has elapsed. It is at
this ultimate point, when complete diplomatic immunity ratione personae disappears, that
diplomatic immunity ratione materiae3 comes to the fore.

Although, the diplomatic immunity ratione materiae is subjected two independent & cumulative
conditions, the act must (a) be official, and (b) be performed in the exercise of diplomatic
functions. The first condition for the applicability is that the act in question be official in nature.
An act is official if it is performed be an organ of a State in his official capacity, so that it can be
regarded as an act of State once imputed to the State. In other words, when a diplomatic agent
acts as an arm, or serves as a mouthpiece, of the sending State can his act is considered as
official. If the act is not official or not an act of the State, diplomatic immunity ratione materiae
cannot given to it.4

But this immunity can & must relate only to such official acts which are performed in the
exercise of diplomatic functions. The diplomatic immunity ratione materiae is exercised only
when the act pertains to discharge of diplomatic functions & not any official acts of the State. 5

The duration of the diplomatic immunity ratione materiae is indefinite.6 This permanent though
partial immunity of diplomatic agents has ample authority in international law & it is explicitly
mentioned in both the Havana & the Vienna Conventions. The former states in Art 20:

The immunity from jurisdiction survives the tenure of office of diplomatic officers in so
far as regards actions pertaining thereto.

The Vienna Convention pronounces in Article 39 (2):

With respect to acts performed by such a person in the exercise of his functions as a
member of the mission, immunity shall continue to subsist.

2
Yoram Dinstein, Diplomatic Immunity from Jurisdiction Ratione Materiae , 15 The International and
Comparative Law Quarterly 76, 79 (1966).
3
Havana Convention regarding Diplomatic Officers, 1928, Art. 20, ibid at78.
4
Supra 2.
5
Ibid.
6
Ibid.
The diplomatic immunity ratione materiae is regarded as surviving & continuing immunity to
the agents after the demise of the diplomatic immunity ratione personae. This means that
diplomatic immunity ratione materiae exists all along, side by side with immunity ratione
personae7. It is just that immunity ratione materiae is eclipsed due to the shadow of personal
immunity. The personal immunity of the agent blankets this immunity of ratione materiae & it is
only stripped when the personal immunity expires.

The Harvard Research on Diplomatic Privileges & Immunities8 draws a line in the coexistence of
these immunities. Non-liability is defined as follows (Article 18):

A receiving State shall not impose liability on a person for an act done by him in the
performance of his functions as a member of the mission.

As for the exemption from jurisdiction, according to the Research, it applies during the tenure of
the diplomatic office, both with respect to official & private acts. The point is that, with regard to
private acts foreign diplomats are subject to local law, they are immunized from the exercise of
jurisdiction, & the immunity for the official acts is from both the jurisdiction & the law of the
receiving State.9

As a result, the immunity ratione materiae & ratione personae are distinguished from one
another: the former consists of permanency in immunity from the applicability of local law,
whereas the latter merely comprises a procedural exemption from judicial process.10

3. IMMUNITIES & LIABILITIES OF A DIPLOMATIC AGENT

Although diplomats are granted immunity from jurisdiction of the receiving State, Article 41 of
the Vienna Convention makes it clear that they are obliged to respect its laws and regulations. If
the receiving State wishes to hold the diplomat liable for criminal or civil actions, the receiving
State may request that the sending State waive the diplomat’s right to jurisdictional immunity.
Sometimes, the receiving State makes representations to the sending State to initiate proceedings

7
Harvard Research on Diplomatic Privileges and Immunities, 26 American Journal of International Law Supp. 15,
137(1932).
8
Ibid.
9
Ibid, at 98.
10
Ibid, at 98-99.
against the criminal or civil actions of the diplomat; or in extreme scenario they may declare the
diplomat involved persona non grata. Such measures are rarely taken.
The judgment delivered by Lord Hewart C.J. in Dickinson v. Del Solar 11 , where it is said:
Diplomatic agents are not, in virtue of their privileges as such, immune from legal liability for
any wrongful acts. . . . Diplomatic privilege does not import immunity from legal liability, but
only exemption from local jurisdiction. This statement of the law seems unimpeachable, and it
should be noted that it relates to “any wrongful acts," regardless of their nature. Diplomatic
immunity, whether ratione personae or ratione materiae, merely is an exemption from judicial
process. This conclusion is not only in keeping with the letter and spirit of Article 39 (2) of the
Vienna Convention, as quoted above, but it conforms to the broad principle expressed in Article
41 (1): 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.

3.1. THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS, 1961

The Vienna Convention is a comprehensive multilateral codification of immunities extended to

members of permanent diplomatic missions and their families, and constitutes the modern law
concerning privileges and immunities of diplomats. 12 It is one of international law’s most
successful and enduring rules, with 185 states currently recognising these rules. 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 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).

There is no right as such under international law to diplomatic relations, and they exist by virtue
of mutual consent.13 If a state does not wish to enter into diplomatic relations, it is not legally
compelled to do so. As per article 4 of the Convention, the sending state must ensure that the
consent of the receiving state has been provided for the proposed head of its mission and reasons
for any refusal need not be given by the receiving state. Also in article 9, the receiving state may

11
(1930) 1 K.B. 376.
12
Supra 2.
13
Article 2 of Vienna Convention on Diplomatic Relations, supra 2, at 88.
at any time declare any member of the diplomatic mission persona non grata without giving any
reason to its decision. However, the principle of consent as the basis of diplomatic relations may
be affected by other rules of international law.

The main functions of a diplomatic mission are specified in article 3 and revolve around the
representation and protection of the interests and nationals of the sending state, as well as the
promotion of information and friendly relations.
Article 13 provides that the head of the mission is deemed to have taken up his functions in the
receiving state upon presentation of credentials. Heads of mission are divided into three classes
by article 14, viz. ambassadors or nuncios accredited to heads of state and other heads of mission
of equivalent rank; envoys, ministers and internuncios accredited to heads of state; and chargés
d'affaires accredited to ministers of foreign affairs.14 It is customary for a named individual to be
in charge of a diplomatic mission.15

3.2. DIPLOMATIC IMMUNITIES- PERSONAL

The person of a diplomatic agent is inviolable under article 29 of the Vienna Convention and he
may neither be detained nor arrested. In resolution 53/97 of January 1999, for example, the UN
General Assembly strongly condemned acts of violence against diplomatic & consular missions
and representatives, while the Security Council issued a presidential statement, condemning the
murder of nine Iranian diplomats of Afghanistan 16 . State recognizes that the protection of
diplomats is a mutual interest founded on functional requirements and reciprocity17. There is an
obligation on the receiving State to ‘take all appropriate steps’ to prevent any attack on the
person, freedom or dignity of diplomatic agents.
The diplomatic agents enjoy complete immunity from the legal system of the receiving State
with respect to the criminal jurisdiction. However, they do not hold immunity from the
jurisdiction of the sending State. 18 The only remedy available is to declare him persona non
grata under article 9.

14
Eileen Denza, Diplomatic Law-Commentary on the Vienna Convention on Diplomatic Relations, 87(3rd ed.,
2008).
15
Malcolm Shaw, International Law, 681(5th ed., 2003).
16
SC/6573 (15 Septemher 1998). See also the statement of the UN Secretary-General, SGlSMl6704 (14 September
1998).
17
Boos v. Barry, 99 L Ed 2d 333,346 (1988); 121 ILR, pp.499, 556.
18
Article 31(2) of Vienna Convention on Diplomatic Relations.
Article 31(1) also specifies that diplomats are immune from the civil and administrative
jurisdiction of the state in which they are serving, except in three cases: first, where the action
relates to private immovable property situated within the receiving State; secondly, in litigation
relating to succession matters in which the diplomat is involved as a private person; and, finally,
with respect to unofficial professional or commercial activity engaged in by the agent19.
By article 31(2), a diplomat is not obliged to give evidence as a witness, while by article 31(3),
no measures of execution may be taken against such a person except in the cases referred to in
article 31(1) a, b and c and provided that the measures concerned can be taken without infringing
the inviolability of his person or of his residence. Diplomatic agents are generally exempt from
the social security provisions in force in the receiving state, from all dues and taxes, personal or
real, regional or municipal except for indirect taxes, from personal and public services and from
custom duties and inspection, as mentioned in article 36(1).
However, a diplomatic is in a state which is neither the receiving state nor a state of transit
between his state and the receiving state, there will be no immunity20.
By article 32, the sending state may waive the immunity from jurisdiction of diplomatic agents
and others possessing immunity under the Convention. Whereas in civil or administrative
proceedings, waiver of immunity from jurisdiction is not taken to imply waiver from immunity
in respect of the execution of the judgment, for which a separate waiver is necessary. In general,
waiver of immunity is unusual, especially in criminal cases21.
3.3. DIPLOMATIC IMMUNITIES - PREMISES OF THE MISSION
As per article 22 of the Convention, the premises of the mission are inviolable and no agent of
the receiving state can enter the same without the consent of the mission. The receiving state is
under a special duty to protect the mission premises.
When the premises are abandoned by the diplomat mission, it is no longer inviolable as required
in article 22; the phrase used in the provision denotes present tense. Thus, such premises do not
constitute part of the sending state22

19
Portugal v. Gotzcalves 82 ILR, p. 115. This exception does not include ordinary contracts incidental to life in the
receiving state, such as a contract for domestic services: see Tabion v. Mufti 73 F.3d 53. De Andrade v. De
Aridrade 118 ILR, pp.299,306-7, noting that the purchase by a diplomat of the home unit as an investment was not a
commercial activity within the meaning of the provision.
20
Public Prosecutor v. JBC 94 ILR, p. 339.
21
Grant V.McClanahan, Diplomatic Immunity, 137(1989).
22
Westminster City Council v. Government of the Islamic Republic of Iran, 719861 3 All ER 284; 108 ILR, p. 557.
 4. CONSULAR PRIVILEGES AND IMMUNITIES: THE VIENNA CONVENTION
ON CONSULAR RELATIONS, 1963

Consuls have duties like issuing visas and passports and generally promoting the commercial
interests of their state. They have other particular roles in assisting nationals in distress, like,
finding lawyers, visiting prisons and contacting local authorities. At the same time, their hands
are tied when it comes to intervene in judicial process or internal affairs of the receiving State or
give legal advice or investigate a crime.
When compared with diplomatic immunity, consular immunity comes with lesser political
functions and is not given the same degree of immunity from jurisdiction as diplomats. Consuls
are required to possess a commission from the sending state and the authorization of a receiving
state. They are entitled to exemption from taxes and custom duties as given to a diplomat.
By article 36(1) (a) provides that consular officers shall be free to communicate with the
nationals of the sending state and to have access to consular officers. In article 36(1) (b)
particularly provides that if a national so requests, the authorities of the receiving state shall
without delay inform the consular post of the sending state of any arrests or detention, and this
shall in no way delay the rights of the nationals. The same was emphasised in International Court
in LaGrand (Germany v. USA) case. The case further emphasized by article 36(1) that it
‘establishes an interrelated regime designed to facilitate the implementation of the system of
consular protection’ 23. The Court held that the US had breached its obligations under article
36(1) by not informing the LaGrand brothers of their rights under that provision ‘without delay’.
In an Advisory Opinion of 1st October 1999, the Inter-American Court of Human Rights
concluded that the duty to inform any detained foreign nationals of the right to seek consular
assistance under article 36(1) constituted part of the corpus of human rights24.
Under article 41 no consular officer may be arrested or detained except in the case of grave
crime and following a decision by the competent judicial authority. However, if any such
proceedings are initiated against a consul, he must appear before the competent authorities. The
proceedings are to be so conducted it does not disrespect his official position and minimize any
inconvenience to the exercise of his consular functions. Further, in article 43, the immunity from

23
ICJ Reports, 2001, 40.
24
‘The Right to Information on Consular assistance in the Framework of the Guarantees of the due process of law’,
Inter-American Court of Human Rights, Advisory Opinion OC-16/99 of October 1, 1999, 10.
jurisdiction is restricted in both criminal and civil matters to acts done in the official exercise of
his consular functions. The immunity as per article 43 was upheld in Koeppel and Koeppel v.
Federal Republic of Nigeria25.
An important principle was kept in mind while codifying the "consular functions"; the Vienna
Convention maintained the basic difference between consular and diplomatic immunities:
"consular personnel enjoy immunity from legal process only in respect of official acts, whereas
diplomatic agents have full personal inviolability and immunity from legal process.”26

5. HOW THESE DIPLOMATIC PRIVILEGES & IMMUNITY BEING ABUSED?

By article 41 of the Vienna Convention there are duties mentioned for diplomats to obey so as to
control any abuse of the immunities or privileges. But these are meaningless due to lack of any
enforcement provisions to compel diplomats to comply.
There have been cases of diplomats involved in various crimes. That is why diplomatic and to
some extent consular immunities have become a matter of growing concern in a number of
countries27. As a consequence of such occasional abuse, there is today a demand from domestic
legislation or policy and in the decisions of domestic courts to restrict the scope of these
immunities. An effort is to require to curtail the abuse and to put the immunity to work in the
context of the purpose for which it is originally devised.28
The well known report on abuse of diplomatic immunity & privileges of the House of Commons
Foreign Affairs Committee clearly points that, this does not grant diplomats freedom to flout
local law. They are still required to obey it29.
Further, the Restatement of the Foreign Relations Law of the United States concludes on this
point: “But a diplomatic agent is subject to law generally…….although the law cannot be
enforced by legal process.”30

25 704 FSupp 521 (1989); 99 ILR, p. 121.

26 Curtis J. Milhaupt, The Scope of Consular Immunity under the Vienna Convention on Consular Relations :
Towards a Principled Interpretation, 88 Columbia Law Review 841, 850 (1988).
27
UK House of Commons, First Report from the Foreign Affairs Committee, Session 1984-85, The Abuse of
Diplomatic Immunities and Privileges, 12 Dec. 1984; and Diplomatic Immunities and Privileges: Government
Report on Review of the Vienna Convention on Diplomatic Relations and Reply to ‘The Abuse of Diplomatic
Immunities and Privileges’, British Government, April 1985, Cmnd.9497.
28 Francisco Orrego Vicuna, Diplomatic and Consular Immunities and Human Rights, 40 The International and
Comparative Law Quarterly, 34, 36 (1991).
29
Supra fn. 27 at p.viii
Of particular concerns, the diplomatic agents have been involved in a new form of enslavement.
Thousands of people have suffered due to the domestic slavery, forced to work without financial
reward in violation of their human rights & dignity. Well, case of Devyani Khobragade is the
most recent case in this area. Here, the Indian diplomat was charged for domestic slavery & visa
fraud, though later she was cleared of all the charges.
Kalayaan, a British charity working for the rights of domestic workers has produced research
which indicates that 6.9% of domestic workers in diplomatic households in UK are victims of
enslavement31. This problem has been discussed in a report by the Parliamentary Assembly of
the Council of Europe which disapproved the fact that the victims working for diplomats or
international servant who, under the Vienna Convention of 1961, enjoy immunity32.
Such crimes are in violation with European and international law. Article 3 & 4 of the European
Convention on Human Rights discourages slavery or any sort of suffering due to torture,
inhumane or degrading treatment. The International Criminal Code also makes slavery or a
situation similar to slavery, human trafficking or trading an offence. However, none of the
victims were able to seek a remedy or exercise their right to remedy, despite the provisions
providing this right as articulated in Article 2 of the International Covenant on Civil and Political
Rights, and Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.

6. IMPORTANCE OF HUMAN RIGHTS IN DIPLOMATIC LAWS

The importance of human rights has grown with its international recognition. There have been
arguments made suggesting that human rights should prevail over diplomatic immunity in case
of a conflict.
A flawed demonstration of the concept with diplomatic immunity & the implementation of
Vienna Convention are viewed in Congo v. Belgium in the International Court of Justice. This

30
Restatement of the Law Third, The Foreign Relations Law of the United States, The American Law Institute, 459
(1987)
31
Jenny Ross, Submission to the Special Rapporteur on Contemporary Forms of Slavery, Kalayaan, June 4th , 2010,
available at
http://www.kalayaan.org.uk/wp-content/uploads/2014/09/SR-contemporary-forms-of-slavery-Kalayaan-submission-
final-_names-now-deleted-for-publication_.pdf (last seen on July 15, 2015)
32
Council of Europe, Domestic Slavery, Strasbourg, Doc. 9102, May 17th 2001, available at
http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=9325&lang=en, last seen on July 15th ,
2015.
case is of remarkable importance. It concerns with the minister of foreign affairs of Congo
against whom an arrest warrant was issued for grave breaches of the Geneva Convention, 1949
& for crime against humanity. The Congolese Government called it as a breach of international
law & principle of sovereign equality of member states of the UN. The Court held that a foreign
minister enjoys immunity from foreign criminal jurisdiction & inviolability, whether he is on
foreign territory on an official business or in private capacity.
The Court, further, said by noting that after a person ceased to hold the office of Foreign
Minister, the courts of other countries may prosecute with regard to acts committed before or
after the period of office and also 'in respect of acts committed during that period of office in a
private capacity'. In other words there is a crucial aspect of personal immunity which is that it
does not render the officer a permanent immunity from criminal proceedings. This is the concept
of ratione personae. In contrast to this, the concept of ratione materiae which gives the officials
permanent unaccountability to other states for acts within his official capacity. Instead official
acts are directly attributable to the state itself and thus give rise to individual criminal
responsibility. The liability of individual is not attached. Because no individual liability ever
arises for the official acts even at the termination of a state agent’s position. Thus a critical
difference arises in the private & official acts after the ICJ case. Unless the diplomat is released
from his official duty, he cannot be held liable for any of his acts either official or private. Once,
he is relieved from his duties & only then his private acts be punished. Further, the Court gave
the former foreign minister immunity on his official acts.
But rather a point is to be kept in mind that any international crimes, genocide, crime against
humanity are never committed in private capacity. Such crimes generally require utilization of
army of governmental authority. The international crimes committed by diplomats in their
private capacity simply do not occur that often33. The exemption by the ICJ does not serve the
purpose as it is difficult to hold any diplomat liable for the international crime or crime against
humanity done in his personal capacity. According to ICJ, diplomats can never be held liable;
instead they allow the power to be abused in the hands of these diplomats.

33
Antonio Cassese, When May Senior State Officials Be Tried for International Crimes? Some Comments on the
Congo vs. Belgium Case, 13 European Journal of International Law, 854(2002).
There was a similar argument in the case of USA v. Iran suggesting that laws relating to serious
crimes against individuals must prevail over other treaty laws like Vienna Convention, 196134.
The key issue in these judgments was that these immunities & privileges had been provided for
diplomats’ protection & they could carry out their function effectively. The drafters had never in
mind to help an individual escape prosecution for his wrong doings.
Further, in case of Epson v. Smith 35 the judge said, ‘it is elementary law that diplomatic
immunity is not immunity from legal liability, but immunity from suit’. Diplomatic immunity is
little more than a procedural barrier, a handy tool to carry out their work.
Also, in a civil suit against Dominique Strauss Kahn 36 , the Court had rejected his claim of
diplomatic immunity in his effort to dismiss a civil suit filed by a hotel housekeeper who claimed
that the French leader had sexually assaulted her…….. A provision of the Vienna Convention on
Diplomatic Relations grants certain diplomatic agents an extension of diplomatic immunity for a
period of time after one’s official duties have ended, but Justice McKeon, ruled that the
extension did not apply to Mr. Strauss-Kahn.
But the real issue has not been solved yet that: how can a diplomatic agent be punished for his
crime committed when he is under the veil of immunity? Can the crime committed by a
diplomatic agent be ignored for maintaining relations between two international states? There is
no clear solution to any these questions. But how can we ignore the suffering of a victim in these
crimes. These victims deserve justice for the difficulties they suffer, as it is the primary duty of a
criminal justice system of any nation. Any criminal justice system is not only required to inflict
punishment but also see that the hunger of victims for justice is satisfied. For a proper
functioning of a society there is a requirement of balance between the need of justice of people
and delivery of justice by the government. If this is not done, it leads the humanity to a desperate
aura which could raise a vigilant behavior.
Any criminal or civil justice system is created to justify for any wrong & for any serious offences
immunity is much harder to ignore this justification. But the problem to draw a line of distinct

34
Based on opinion of Lord Nicholls in U.K. House of Lords: Regina v. Bartle and the Commissioner of Police for
the Metropolis and Others, Ex Parte Pinochet (Mar. 24, 1999).
35
Epson v. Smith, Queen’s Bench Division, 1 Q.B. 426 (1996).
36
Russ Buettner, Judge in Civil Case Rejects Immunity for Strauss-Kahn, New York Times [online], (01/05/2012),
available at http://www.nytimes.com/2012/05/02/nyregion/strauss-kahns-claim-of-diplomatic-immunity-is-
rejected.html?_r=0, last seen on July 15th , 2015.
between ‘major’ or ‘minor’ offences37 is not that easy as a certain may be minor in one state,
completely legal in another, and a serious in another state. It is, therefore, advisable not to punish
diplomats in local courts.
The problem is not about liability but about jurisdiction & that is why such crimes are tried by
sending state. However, there is no guarantee that the sending state would punish the diplomat
for his actions in receiving state. 38 This is where International Criminal Court plays its role
because of the jurisdiction across international borders for issues of serious international
concern.
Unlike domestic courts, the ICC would be able to operate freely and fairly. It would be able to
serve justice without risking any breakdown of international relations and many safeguards exist
in the ICC treaty to prevent frivolous or politically motivated cases39. Thus, there is a need of
amendment to the Vienna Convention40 to make it clear that diplomatic immunity cannot mean
immunity from the ICC’s jurisdiction and the ICC to be allowed to punish for such crimes.

7. CONCLUSION

As in any other legal system, in international law protection of human rights can be guaranteed
only by the availability of effective judicial remedies. When a right is violated of a victim, access
to justice is important and also essential to achieve the rule of law. But this has limitation when
rights are violated due to diplomatic acts. Such diplomatic actions are immunized due to
cooperation among states & this immunizes the diplomatic agents from the jurisdiction of the
receiving state. The real question lies with this issue is that: during a conflict between human
rights & diplomatic immunity, which one of them should prevail. This question comes due to the
weakness exist in concept of diplomatic immunity. It does not deal with the rights of the victim
& providing justice.
The diplomatic immunity is not compatible with the idea of equality before the law. The
immunity prejudices between the diplomats & other citizens. Citizens are not equals before the
law because they do not possess diplomatic immunity. This unjust concept of immunity is
considered as a human rights violation to the victims. With the rising issues for the importance of

37
Eirwen‐Jane Pierrot, Escaping Diplomatic Impunity: The Case For Diplomatic Law Reform, 9(October 2010),
available at http://www.barcouncil.org.uk/media/61895/eirwen-jane_pierrot__42_.pdf, last seen on July 15th , 2015.
38
Ibid.
39
Ibid.
40
Supra 28, at 45.
human rights, it’s the high time to analyse the structure & bring changes in the concept of
humanity.