International Law or Comity?  Exploring whether Grace Mugabe can successfully claim immunity for crimes committed on foreign soil.

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Background Facts

On 14 August 2017 various news sites reported that Grace Mugabe, the wife of President Robert Mugabe of Zimbabwe had assaulted a young woman. A court hearing to obtain a statement from Mrs Mugabe was scheduled for the 15th but she failed to appear. On the evening of the 16th the Government of Zimbabwe directed a note verbale to the South African government invoking diplomatic immunity on her behalf and stating that Mrs Mugabe’s itinerary in South Africa included amongst private matters her attendance and participation at the scheduled SADC Heads of States/Governments Summit and other Bi-lateral Diplomatic Meetings.

The question which has gripped lawyers and laymen alike is whether or not Mrs Mugabe can successfully claim any kind of immunity under international law to shield herself from arrest and prosecution.  Media reports asserted that Mrs Mugabe claimed “diplomatic” immunity”. However, as the spouse of a sitting Head of State, ordinarily resident in Zimbabwe, Mrs Mugabe cannot be considered a diplomatic agent and is not entitled to the protections afforded under the Vienna Convention on Diplomatic Relations (VCDR). Customary international law also confers personal immunity on some state officials. This personal immunity is extensive in scope, and wide enough to cover both official and private acts by heads of state, heads of government and foreign ministers as the Arrest Warrant Case  points out. As Mrs Mugabe does not fall within any of the categories above, she cannot claim personal immunity. In addition, customary international law accords, functional immunity in relation to acts performed in an official capacity. This immunity covers the official acts of all state officials and of those who act on behalf of the state.  It is determined by reference to the nature of the acts in question rather than the particular office of the official who performed them. However, the alleged assault by Mrs Mugabe was not undertaken in the performance of any official duty and functional immunity is unavailable in relation to that act.

This post considers whether the Mrs Mugabe may have been entitled to immunity, while in South Africa, as the spouse of a head of state. The post first considers whether the spouse of a representative to SADC, an international organization, may be entitled to immunity. It then explores the immunity of family members of state officials on special missions and of heads of states.

Could She Have Immunity Through Participation at the SADC Summit?

The SADC Protocol on Immunities and Privileges sets out the immunities which attach to SADC, its institutions and staff.  Article 6 thereof provides that representatives of Member States to the institutions of SADC and to conferences convened by SADC shall, while exercising their functions and during their travel to and from the place of the meeting, enjoy immunities and privileges, which include inviolability of person and property. Article 6(4) defines “representatives” as including all delegates, deputy delegates, advisors, technical experts and secretaries of delegations. It is important to note that Article 6 does not set out immunities for spouses and other family members of representatives, unlike other articles in the protocol such as Article 5 which expressly provides for the immunity of the families of SADC Officials. Thus, it is arguable that it was not the intention of the drafters to extend this immunity to family members.

Further, despite the Zimbabwean government claiming that she was a participant at the SADC Summit, Mrs Mugabe cannot be considered a “representative” for purposes of Article 6. The office of the First Lady is not formally established in terms of the Constitution and she cannot purport to represent the interests of the country at intergovernmental meetings.

Could She Have Special Mission Immunity as a Family Member?

The Government of Zimbabwe stated that Mrs Mugabe had a dual mission, i.e. attending the SADC Summit as well as other ‘bi-lateral meetings.’ Such a bi-lateral mission would be covered under the Convention on Special Missions (the Convention), which defines a special mission as a “temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task.” However, the question of whether the facilities, privileges and immunities of special missions have a basis in law or whether they are accorded merely as a matter of courtesy has not been fully settled under international law.

Under the Convention the status of special missions approximates that of permanent missions under the VCDR. The Special Missions Convention recognises privileges and immunities as a matter of law, in accordance with the views expressed International Law Commission consistently since 1958. Thus, under this Convention, States are under an obligation to accord such privileges to delegates to special missions and their family members. Article 39 of the Convention recognises the immunity of family members accompanying persons on state business. These immunities include personal inviolability and inviolability of private accommodation. The Netherland’s Advisory Committee On Issues Of Public International Law, notes that ‘although the sources are few and far between…it safe to conclude that family members of a head of state… who accompany the person concerned during an official visit… enjoy the same immunity as a state official on an official mission.

Despite this proclamation, the position stated in the Convention is not uniformly accepted, and there is a view that on the contrary, the immunities of special missions under customary international law are less extensive than those accorded to permanent diplomatic missions. This lack of unanimity is perhaps why only 38 states are parties to the Convention. As Nadia Kalb (“Immunities, Special Missions” in the Max Planck Encylopedia of Public International Law, para. 4)  observes, even among parties, routine visits of official negotiators or experts are often not given the status of special missions since States are reluctant to accept that missions always need privileges and immunities as extensive as required by the Convention.

Comity or Law?

Writing in 2008 in his capacity as the International Law Commission’s Special Rapporteur on the topic of Immunity of State Officials from Foreign Criminal Jurisdiction, Roman Kolodkin stated that, in both doctrine and practice, there are much more solid grounds for stating that the source of the immunity from foreign jurisdiction of members of the family of senior officials is not international law but international comity. In 1967, the Special Rapporteur on Special Missions (Milan Bartos) similarly observed that:

Although the dispatch of special missions and itinerant envoys has been common practice in recent times…they have no firm foundation in law…The rules of law relative to ad hoc diplomacy and the sources from which they are drawn are scanty and unreliable. (para. 114)

However, there is a school of thought that that since 1967, the Convention has impacted the development of customary international law, and at present, it can now be considered a reflection of the true status of international law. As Sir Michael Wood observes in a recent article:

The elaboration of the Convention [has] had a major impact on the development of rules of customary international law;  While it cannot be said that all – or even most – of the provisions of the Convention reflected customary international law at the time of its adoption, it is widely accepted that certain basic principles, including in particular the requirement of consent, and the inviolability and immunity from criminal jurisdiction of persons on special missions, do now reflect customary law.

Despite this assertion, it is contended that state practice is too irregular and inconsistent to definitively state that the provisions of the Convention has attained the status of customary international law. While it is not possible to discuss domestic case law at length in a work of this nature, a few samples will illustrate.

In Kilroy v Windsor, a claim of immunity in favour of the Prince of Wales was upheld. In the Freedom and Justice Party case, the High Court of Justice held that “customary international law requires a receiving State to secure, for the duration of a special mission, personal inviolability and immunity from criminal jurisdiction for the members of the mission accepted as such by the receiving State.” In Marcos et Marcos, the Swiss Federal Tribunal recognized the immunity of the wife of the former President of the Philippines, noting that customary international law has always granted to Heads of State, as well as to the members of their family, the privileges of personal inviolability and immunity from criminal jurisdiction.

Conversely in R v Governor of Pentonville Prison, ex parte Osman, special mission immunity was denied and the Vice Marshal of the Diplomatic Corps stated that the United Kingdom was not a party to the Convention on Special Missions and did not regard that convention as declaratory of customary law. Likewise in United States of America v Sissoko, Moore J held that the Convention on Special Missions did not bind the court, and that there was some resistance to the tenets of the convention such that it is not yet “customary international law”

However, even on this point, Mrs Mugabe cannot be deemed to be immune from arrest and prosecution. In its ordinary grammatical meaning ‘accompany’ means ‘to go somewhere with (someone) as a companion or escort.’ Mrs Mugabe did eventually travel from Johannesburg and join her husband in Pretoria, but it would be fallacious to argue that on 14 August when she committed the assault, she was ‘accompanying’ her husband who was still in Zimbabwe at the time.

She Has No Immunity at All

The claim that Grace was attending the SADC Summit and other bilateral meetings does not provide her with immunity. While the South African government did retrospectively recognise her immunity, the basis for this is certainly not law but comity.

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A. N. Honniball says

September 4, 2017

Dear Bellinda,

Very interesting post and apparently a running topic for Grace Mugabe. A 2009 incident in Hong Kong reached a similar conclusion:

In the final link, DIRCO seem to be arguing immunity rationale personae ("derivative immunity of spouses of Heads of State"). You dismissed personal immunity at the start, but it comes up again in the ‘Comity or Law?’ section with Marcos. Ignoring whether derivative personal immunity is a sound position, I'm just curious if you are here suggesting 'accompanying' also applies in the context of personal immunity? I assume that within the other sources you quote, ‘accompanying’ is there to link the family members presence within the state to the official's presence and the official mission. As an extension of functional immunity, it would only last for the duration of the mission. However, if personal immunity is so extensive, including personal trips (Arrest Warrants Case), then why would Mr. Mugabe need to be there for her to exercise the rights granted by his office? If ‘derivative’ personal immunity exists, it would also be absolute, covering her personal trips and assaults until her husband loses power (assuming she is unsuccessful in becoming the next head of state).

Kriangsak Kittichaisaree says

September 4, 2017

Apologies to the followers of the EJIL Talk! Blog that I’m intervening again so soon after my last intervention!

Dear Bellinda, two points.

Firstly, it is a settled practice that every State has a sovereign right as to whom it may appoint as representatives to an international conference, provided that the letter of credentials identifies the persons in question as such. This is irrespective of the persons’ official or constitutional roles/positions in that State, unless the rules of procedure of the conference provides otherwise.

In this connection, I think the provision most pertinent to the situation covered in your post should be Art. 6(2) of the SADC Protocol on Immunities and Privileges, which reads:

“Privileges, immunities and facilities are accorded to the representatives of Member States not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with SADC. Consequently, a Member State not only has the right but is under a duty to waive the immunity of its representatives in any case where, in the opinion of the Member State, the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity was accorded.”

Secondly, a number of States have taken the position (in the Sixth Committee of the UNGA and elsewhere) that the list of persons entitled to immunity ratione personae is not confined to the ‘troika’. They cite the words “such as” in para. 51 of the ICJ Judgment in the Arrest Warrant case (“ … in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, SUCH AS the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal. For the purposes of the present case, it is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs that fall for the Court to consider”). Other States strongly disagree. A possible feasible compromise is to resort to the Convention on Special Missions to limit the category of persons entitled to immunities while visiting another State, irrespective of whether or not the State of nationality of the visitors and/or the host State are/is party to that Convention.

The US practice is to grant the accompanying “immediate family members” of delegates to UN and other IO meetings in the USA the same G-2 diplomatic visas as the delegates, thereby entitling the spouses to the same immunities & inviolability in the USA as the delegates.

Jeff Carson says

September 6, 2017

Very nice post Belinda, According to the Huffington Post, the violence wouldn’t end there, however as she is additionally alleged to have paid money to reporters in Singapore to prevent the incident making front-page headlines. When it did, a member of Mugabe’s close protection unit was accused of leaking information and allegedly tortured and beaten.

Bellinda R. Chinowawa says

September 8, 2017

@A. N. Honniball I do not think that personal immunity applies to Mrs Mugabe. My understanding of this type of immunity is that it attaches to high level state officials only and she is not one, so she cannot benefit from that type of immunity. The reference to 'accompanying' spouses is derived from the Convention on Special Missions, and had it been ratified and domesticated in South Africa, there is a chance that she could have benefited from its protections.