The mysterious facade of diplomatic immunity is increasingly cracking as courts have begun looking closely at the principle and just how far it goes to protect diplomats working abroad. The principle is that diplomats should be given free passage to and from, and around, their host country. As a result they are free from prosecution, taxes and interference from the law generally. Many believe from Hollywood blockbusters that it is, in effect, a license to do anything, a status applying to only the most powerful people to whom the everyday laws of the land simply do not apply. The idea that someone can do whatever they like and face no consequences, no justice, is to most people equally abhorrent as it is enviable.
A recent case in the Court of Appeal confirms the limits of the principle in family law. In Estrada v Al-Juffali the judge upheld the decision made by the High Court that the husband, a wealthy businessman representing St Lucia, was not entitled to diplomatic immunity because he had been permanently resident in the UK and the claim did not relate to official acts performed by him in the execution of his post. So what does this mean in practical terms? This case sets a precedent, meaning future cases of the same nature will be decided in the same way. Diplomats who are resident permanently in the UK will not be able to escape claims which do not relate to the official capacity. If diplomats fall foul of domestic law in exercising some function as part of their job as a foreign representative they will remain immune from any claims in that regard. Of course it is difficult to construe any circumstances they could invoke the right in relation to family law, especially divorce, as it almost always involves a claim relating to a person’s private family life.
The legal waters surrounding diplomatic immunity remain murky and difficult. Claim are rare because of their very nature: there are few diplomats compared to the population at large, claims brought against diplomats could have detrimental effects to the UK’s international relations and by their very nature, involving international persons, there is often scope for them to be heard outside of the UK too, in the parties’ home country. And let’s not forget that the vast majority of diplomats are law-abiding people with no reason to be involved with the law in a criminal or civil capacity. Recently however the concept has gained greater scrutiny; the current situation of embassies refusing to pay congestion charge has resulted in £82 million pounds being owed to Transport for London. Embassies claim they are protected by the right of diplomatic immunity and there is a stalemate as to whether the bills, and subsequent fines will be paid. The argument centres not around any breach of the law, but the fact that the congestion charge can be construed as a tax. Diplomats are exempt from taxes other than those for specific services rendered, e.g. VAT on a manicure or a haircut.
The principle of diplomatic immunity finds its modern legal grounding in the Vienna Convention on Diplomatic Relations (1961) which states at Article 29:
“The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”
The historic origins are that immunity was developed to protect foreign diplomats, allowing them to go to a country and negotiate, say to end a war like the Anglo-Spanish war of 1796, without fear of arbitrary arrest, imprisonment…and maybe even torture or execution.
The Estrada case signals a limitation of the seemingly blanket provisions protecting the right. No more is the right being treated as a complete immunity, a get out of jail free or “never go to court at all” card. The judgement is landmark in the sense it is a judicial questioning of the principle. Instead of viewing it as absolute in all circumstances, the truth is that diplomatic immunity is not, and it can be argued was never intended to be, a license for the diplomat to sit above the law in every part of their life and everything they do.
The whole idea is not compatible with any form of modern justice as it allows the wrongdoer to escape from consequences under the law. However its existence is arguably preferable to its absence so as to protect diplomats from prosecution or detention by the host state. The principle doesn’t mean that foreign diplomats cannot seek redress for offences or legal wrongs against them and many argue that this unbalanced situation is totally unfair: a diplomat could assault you and face no criminal sanction, but if you were to assault a diplomat, you would be liable to be arrested and imprisoned. Essentially the diplomat is above the law but enjoys the full protection by it that everyone else is afforded. I can conceive of no reason why the scope of family law should not apply to all diplomats living and working in the UK, given its inherently private nature; it doesn’t inhibit their role as an international representative and it doesn’t seem just that they should be given unfair advantage. Only time will tell whether family law will be fully applied to UK-based diplomats, and whether the principle in general will be further eroded by the practicalities of modern justice. We may be waiting some time for another test case, so for now the debate is largely academic.
What do you think? Is diplomatic immunity necessary in the modern age? Does it extend to far? Let us know in the comments or Tweet us.
