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Home Archive for category "Diplomatic Immunity"

The Limits of Diplomatic Immunity in the Age of Human Trafficking: The Supreme Court in Reyes v Al-Malki

Published on October 23, 2017        Author: 

Disclaimer: The author was counsel to the Intervener, Kalayaan, a charity that supports migrant domestic workers, some of whom have been trafficked. This post is written in the author’s personal academic capacity and does not necessarily represent the views of her client.

Last week the UK Supreme Court delivered judgments in two landmark cases on immunity. This post examines the Judgment in Reyes v Al-Malki on diplomatic immunity.

There is much of interest in the Reyes Judgment – the relationship between State and diplomatic immunities, approaches to treaty interpretation (including temporal dimensions), the appeal by Lord Wilson to the International Law Commission to take this issue forward (para 68), and the Court allowing a diplomat to be served by post to their private residence (para 16). I will focus on the approach to diplomatic immunity in the context of human trafficking.

The Court decided that Mr and Mrs Al-Malki, a former member of the diplomatic staff of the Saudi embassy in London and his wife, are not entitled to immunity from the claim brought against them by Ms Reyes, a Philippine national who was their domestic servant for two months in 2011. The appeal proceeded on the basis of assumed facts. Ms Reyes alleges that she had entered the UK with a contract showing that she would be paid £500 per month by Mr Al-Malki. Instead, she says she was paid nothing. She alleges she was made to work excessive hours, had her passport confiscated, did not have proper accommodation, and was prevented from leaving the house or communicating with others (para 1). She eventually escaped.

UK Visas and Immigration had found that there were reasonable grounds for concluding that Ms Reyes was a victim of human trafficking.

The Supreme Court decided on the basis of Article 39(2) of the Vienna Convention on Diplomatic Relations, which sets out the residual immunity enjoyed by diplomats who are no longer in post:

When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, 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. (emphasis added)

The Judges unanimously held that the employment and maltreatment of Ms Reyes were not acts performed by Mr Al-Malki ‘in the exercise of his functions as a member of the mission’ and he was therefore not immune.

Another provision of the Vienna Convention – Article 31(1)(c) – had formed the centrepiece of the parties’ arguments in the Court of Appeal and the Supreme Court. It sets out an exception to immunity for diplomats who are currently in post:

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of : 

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. (emphasis added)

Lord Sumption wrote the lead Opinion (with which Lord Neuberger agreed), disposing of the case on the basis of Article 39(2), but also analysing Article 31(1)(c) in depth. Lord Wilson agreed with Lord Sumption’s analysis of Article 39(2), but expressed ‘doubts’ regarding his interpretation of Article 31(1)(c), with Lady Hale and Lord Clarke sharing these ‘doubts’.

We thus have a straightforward, unanimous decision on the basis of Article 39(2) applicable to former diplomats, but we also have a split within the Court on the interpretation of Article 31(1)(c), with obiter ‘doubts’ on obiter reasoning. Read the rest of this entry…

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Three New ICJ Cases Filed, Including Iran v. United States

Published on June 16, 2016        Author: 

In some ten days the International Court of Justice got three new cases on its docket. First, on 6 June Chile instituted proceedings against Bolivia with regard to a dispute concerning the status and use of the waters of the “Silala River system.” The jurisdictional basis of the case is the compromissory clause in the Pact of Bogota, and the cases raises issues of international watercourses and environmental law.

Second, on 14 June Equatorial Guinea instituted proceedings against France with regard to the immunity from criminal jurisdiction of its Second Vice-President in charge of State Defence and Security, and the legal status of the building which houses its Embassy in France. The Guinean Vice-President is under investigation for corruption offences by French authorities, on the basis that he invested the proceeds of that corruption in France. French prosecutorial and judicial authorities have held that he has no claim to immunity. The building in question was first bought by the Vice-President and then sold by him to the Guinean Embassy; French authorities assert that it is not protected by immunity since it was bought out of the proceeds of the offences for the which the Vice-President in being prosecuted for, and is not part of the diplomatic mission. The jurisdictional basis for the case is the compromissory clauses in the protocol to the Vienna Convention on Diplomatic Relations and the UN Convention against Transnational Organized Crime.

Finally, yesterday Iran instituted proceedings against the United States in a dispute concerning alleged violations of the 1955 Treaty of Amity, and on the basis of the compromissory clause in that Treaty. The case essentially concerns the alleged US failure to respect the immunity of the Iranian Central Bank/Bank Markazi and other Iranian entities, as well as other rights conferred by the Treaty (the Court will not have jurisdiction for violations of customary international law directly, but only insofar as these rules are referred to or assist in the interpretation of the provisions of the Treaty). Enforcement proceedings have been brought in the US against these Iranian entities for Iran’s involvement in terrorist activities; see more on the whole affair the previous post by Victor Grandaubert.

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A Diplomat in Name Only? Judicial Scrutiny of Diplomatic Appointments

Published on February 22, 2016        Author: 

The English High Court has delivered two important Judgments on diplomatic immunity this month. Both cases concern the entitlement to immunity of a person claiming to be a diplomat. They reached opposite conclusions as to how far a court may inquire into whether a person is in fact acting as a diplomatic agent.

On 8 February 2016, Mr Justice Hayden in Estrada v Al-Juffali [2016] EWHC 213 (Fam) adopted (para 36) a functional test: has the person “in any real sense” taken up his appointment and discharged any responsibilities in connection with it? One week later, Mr Justice Blake in Al Attiya v Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 (QB) rejected the functional test (para 73) and took (paras 37(i), 74-5) a formal approach: A person should be treated as a diplomatic agent if there is evidence that he has been appointed as such and that appointment has been communicated to and accepted by the FCO.

Facts: Diplomats in Name Only? 

Colourful, if not scandalous, facts underpin each case.  Read the rest of this entry…

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Immunity of Heads of State on the Retreat

Published on January 11, 2016        Author: 

On December 31st, the United Nations Dag Hammarskjöld Library tweeted that its most popular item of 2015 was my book entitled “Immunity of Heads of State and State Officials for International Crimes”.

The tweet immediately led to an intense controversy on Twitter and to a number of articles (here or here). Many commentators suggested that the book has been popular because diplomats were looking for ways to protect themselves or their bosses. Some also claimed that it was a poor sign for the United Nations. The news website Vox wrote: “The UN is full of delegates representing awful dictatorships, and the book that got checked out the most from the UN library was about … how to be immune from war crimes prosecution. That does not seem like a good thing!”

Numerous commentators jumped to the conclusion that the book was some sort of recipe to escape prosecution for international crimes. But in fact, rather than for criminal dictators, the book is for committed prosecutors and judges. In particular, it contains a detailed analysis of the relevant customary international law. Read the rest of this entry…

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Let the Games Continue: Immunity for War Crimes before the Italian Constitutional Court

Published on October 24, 2014        Author: 

The issue is important, no doubt – to what extent do rules of immunity apply in respect of grave violations of international law? Over the past two decades, it has been addressed by lawmakers, the ILC, international and national courts in cases like Al Adsani, Jones, Bouzari and others – and of course in hundreds of articles, notes and books. In fact, few other questions have prompted as much intense debate in the literature. As the number of plausible arguments and approaches is finite (jus cogens, implied waiver, etc.), there was bound to be duplication and repetition. (Was I the only one gradually tiring of the debate?)

In any event, the ICJ’s judgment in Jurisdictional Immunities of early 2012 seemed to settle matters: immunity could be invoked in respect of war crimes, said the Court; jus cogens was not at issue; immunity had to be assessed as a preliminary matter and irrespective of the gravity of the allegations; grave violations could still be acts iure imperii; the territorial tort exception did not apply etc. In terms of international legal process, this seemed to show the Court at its strongest, acting as supreme arbiter in long-standing debates about the proper understanding of the law, and by virtue of its authority clarifying the state of international law.  ‘At last we have certainty’ wrote Andrea Bianchi on EJIL:Talk! . And in 2013, Italy passed legislation implementing the ICJ judgment.

Two and a half years on, it’s clear that the matter remains a live one. The ECHR’s judgment in Jones seemed to accept the authority of the ICJ’s decision, but raised questions about the scope of personal immunities. (See Philippa Webb’s post).  And in the past few weeks, things have accelerated. Two weeks ago, the High Court of England and Wales decided that a Bahraini prince is not immune from prosecution for torture allegations.

But that, it seems, was no more than the prologue: Because on Wednesday, the Italian Constitutional Court seems to have gone much further. It has quashed the Italian legislation implementing the 2012 judgment, which in its view violates constitutional provisions. The ICJ’s decision is duly addressed, but not followed. As my Italian is rudimentary (and as I have yet to find a translation of the decision), I will not even begin to discuss the merits and arguments set forward. All I want to do at this stage is draw readers’ attention to it. And suggest we all prepare for yet another round of debates about how to strike the balance between human rights and immunity. ‘Certainty at last?’ You wish.

UPDATE: Here is an English summary of the judgment, provided by Francesco Messineo, Honorary Research Fellow at Kent Law School.

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Was the US Entitled to Require the Departure of the (former) Indian Consul?

Published on January 13, 2014        Author: 

For my previous posts on legal issues arising out of the diplomatic incident between the United States and India regarding arrest of the Indian Deputy Consul-General see Part I and Part II

At the end of last week, Devyani Khobragade, the Indian consul arrested in New York last month returned to India, after she was by a federal grand jury (see New York Times and Reuters).

Devyani Khobragade

Devyani Khobragade

Apparently, the US first approved India’s transfer of Ms Khobragade to the Indian mission to the UN, a move which granted her diplomatic immunity, including immunity from prosecution (as discussed in my previous posts – part I and part II). The US then requested that India waive that diplomatic immunity. When India refused that request, the US requested or demanded Ms Khobragade’s immediate departure from the US. In response, India has also requested that the US withdraw one of the members of its embassy in Delhi. Although it is an unfriendly act, it not unlawful for a receiving state to expel a diplomat or consular official of another state. Indeed, this possibility is explicitly provided for in Article 9 of the Vienna Convention on Diplomatic Relations and Article 23 of the Vienna Convention on Consular Relations. Under both provisions, a receiving state may declare a person to be persona non grata, with the effect that the sending state is bound to recall the diplomat or consul, or to terminate their functions in the mission. There is no requirement for the receiving state to give reasons for declaring a diplomat or consul persona non grata and it may make such a declaration because of the official or private conduct of the official, or even for reasons unconnected that with particular person. So, India is within its rights to require the US to withdraw one of its embassy staff, in retaliation for the US’s request that Ms Khobragade leave the US. But was the US entitled to require her departure?

The wrinkle here is that when her departure was requested Ms Khobragade was no longer a consular official of India, accredited to the US but a representative of India to the United Nations. Representatives of states to the UN are not accredited to the US and are not exercising functions in the bilateral relations between the US and that State. Therefore, it would be inappropriate for the state of bilateral relations between the US and a particular country to affect the ability of that country’s representatives to perform their functions with regard to the UN.  The US, as host state to the UN headquarters, clearly has an interest in who is allowed into the US and who can stay in the US. However, if the US could exercise its normal sovereign prerogatives with regard to admission of non-nationals into its territory in determining which person can be admitted to act as representative of a state to the UN, the US would be entitled to determine, without legal restraint, how countries are represented at the UN and be able to affect the capacity of states to enjoy their rights as members of the UN. Read the rest of this entry…

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The Immunity of Representatives to the UN: A New Twist in the Diplomatic Row Between India and the United States

Published on December 30, 2013        Author: 

Part 1 and Part 3

The diplomatic row between India and the United States over the arrest and prosecution of Devyani Khobragade, the Indian deputy consul-general in New York, for visa fraud and violation of US employment laws, continues (see my previous post) but new facts are emerging which may affect a determination of whether the US acted lawfully in arresting Ms Khobragade. India has taken further retaliatory measures against the US by withdrawing some of the privileges enjoyed by US diplomats and their families in the India. It is also investigating possible tax violations by US officials and has  issued new  identity cards to US consular officials in which make it clear to those officials (and to the police) that those consular officials may be arrested for serious offences (see recent New York Times, Reuters and BBC reports). With regard to Ms Khobragade herself, new questions have emerged with regard to the immunity that she may be entitled to. As noted in my previous post, India has, since her arrest, moved her from its consulate in New York to the Indian Mission to the UN, apparently, in an attempt to obtain full diplomatic immunity for her. It has now been asserted that even at the time of the arrest, she was temporarily assigned to the Indian Mission to the UN to assist with work in connection with the General Assembly session (see Reuters report). This may well change the picture as to whether Ms Khobragade was actually immune from arrest at the time.

In my previous post, I discussed the legality of the deputy consul-general’s arrest on the basis that she was only entitled to consular immunity. As noted in that post, consular officials are only entitled to functional immunity from prosecution, i.e immunity in respect of acts performed in the exercise of her consular functions, and may be arrested for grave crimes (pursuant to a decision of a competent judicial authority). However, the position is different with regard to representatives of states to the UN. If Ms Khobragade was already a part of the Indian Mission to the UN when arrested, or if she does become a part of the Indian Mission then the position with regard to the arrest, and with regard to the prosecution might be different from what was first thought.

Let me begin by considering the legality of the arrest of Ms Khobragade in the light of the claim that she was already a member of India’s mission to the UN at the time of the arrest.  Reuters report that

“[s]he was temporarily moved to India’s U.N. mission in August to help with the workload ahead of the General Assembly session and a visit by the prime minister. A copy of her accreditation, made available to Reuters, lists her as an adviser for a period from August 26 until December 31.”

If this is correct then Ms Khobragade might well have been immune from arrest at the time when she was arrested. The reason for this is that Section 11(a) of the 1946 General Convention on Privileges and Immunities on the United Nations provides that “Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions . . .”, enjoy “Immunity from personal arrest or detention”. Read the rest of this entry…

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Immunity of Consular Officials – The Arrest by the US of an Indian Deputy Consul-General

Published on December 20, 2013        Author: 

For a subsequent posts on this issue see part 2 and part 3.

A serious diplomatic row is brewing between India and the United States regarding the arrest  and treatment of an Indian consular official accredited to the United States (see coverage by the BBC, New York Times & the Daily Mail). The brief background to the story is that last week, US Federal authorities arrested Devyani Khobragade, who is the Indian Deputy Consul-General in New York, on charges of visa fraud. Ms Khobragade is accused of submitting false documents to US authorities in order obtain a work visa for her housekeeper/maid. She is also accused of paying the maid less than the minimum wage prescribed by US law. The dispute over her arrest has become particularly acrimonious because it is alleged that not only was Ms Khobragade arrested at her daughter’s school, that she was handcuffed (which is denied by US authorities) and then subjected to a strip-search (which seems to be admitted) (see New York Times piece). Although US Secretary of State Kerry has called the Indian authorities to express regret over the incident, India has demanded an apology from the US and has taken “retaliatory” measures. Those measures include the removal of some privileges previously accorded to US diplomats, a refusal by Indian officials to meet with a US Congressional delegation in India, and perhaps most seriously, the removal of security barricades that were in front of the US embassy in Delhi (see here and here).

This post address three main issues (i) whether the Indian official is immune from prosecution; (ii) whether she was immune from arrest in the first place; and  (iii) the legality of India’s response to the incident. The key legal question that has arisen in this episode is whether the Indian consular official is entitled to immunity from prosecution. Her lawyers have asserted that she is immune from US jurisdiction. It is not clear whether India has similarly asserted that she is immune though India has demanded an apology which suggests that they think the US has done something wrong. Most of the media have reported the US position which is that consular officials, unlike diplomatic agents, are not entitled, under international law, to full immunity from criminal jurisdiction. This is correct. Read the rest of this entry…

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Jurisdictional and Immunity Issues in the Story of Enrica Lexie : A Case of Shoot & Scoot turns around!

Published on March 25, 2013        Author: 

Harisankar K S is Assistant Professor of Law, National Law University Jodhpur, Indiaharishankar

The Enrica Lexie incident (discussed by Douglas Guilfoyle here on EJIL:Talk! a year ago) has caused ripples not only in the political and diplomatic circles but also generated debates in the international legal community. The incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident.  The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code.

The following discussion highlights certain important developments in the legal arena, both domestic and international, in the context of criminal jurisdiction on high seas and immunities of state offiials. In addition, I suggest some possible outcomes of the case.

The Shooting  Incident

Prior to a discussion of Indian jurisdiction over the Italian marines for the shooting incident, there is a preliminary question as to whether India violated international law by engaging in the “Hot Pursuit” of the Italian ship? Read the rest of this entry…

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ICC Decides on Immunities and Privileges of Defence Counsel and ICC Staff

Published on March 6, 2013        Author: 

Last week, the Pre-Trial Chamber of the International Criminal Court issued a decision with important implications for the privileges and immunities of counsel acting at the ICC, and also of ICC staff. In its decision, the Pre-Trial Chamber confirmed that the immunities provided for in Article 48 of the ICC Statute apply to defence counsel and to staff of the ICC involved in the ICC proceedings against Saif Gaddafi. It also held “that the inviolability of documents and materials related to the exercise of the functions of the Defence constitutes an integral part of the treatment that shall be accorded to the Defence pursuant to article 48(4).” This means that these documents may not be seized by States, and in this particular case, the ICC held that Libya is under an obligation to return such seized documents.

The decision arose out of the detention in Libya, last June, of four members of staff of the ICC, including Melinda Taylor a lawyer at the Office of the Public Counsel for Defence (OPCD). The ICC staff were detained by the militia holding Saif Gaddafi (who is represented by the OPCD) when they were in Libya to meet with Saif. At time of the detention, I and others argued that these detained persons were entitled to immunity from criminal process in Libya (see previous post).

There are three interesting points that arise out of this decision. The first relates to the applicability of the Statute (and in particular Art. 48) to Libya. The second relates to which part of Art. 48 applies to defence counsel employed by OPCD. The third, and perhaps most important, point is that the decision  implies the applicability of the 2002 Agreement on the Privileges and Immunities of the International Criminal Court to States that have not ratified it.

Read the rest of this entry…

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