Fahamu (Oxford)

Africa: Could There be Exceptions to Inviolability of Diplomatic Immunity?

analysis

International law protects the inviolability of the integrity and dignity of diplomatic agents and this extends to the property and premises of diplomatic missions. But could there be any exceptions to the inviolability in international law of diplomatic immunity? Should there be?

These questions can only be answered by presenting hypotheticals. Let us begin the analysis by presenting an analogical premise. Torture is outlawed in international law and is non-derogable, that is, there are supposedly no exceptions under which torture is permissible. However, recently and in the wake of increasing terrorist attacks in the world, scholars have posed the question as to whether torture should and is permissible under what they call "the ticking bomb" scenario.

This is a scenario where, allegedly, there is information that a certain person is a terrorist and possesses information which if obtained from them under torture( if not given voluntarily) could save lives and limb; then torture is permissible. Some scholars like Alan Dershowitz of Harvard Law School have gone to the extent of suggesting that torture warrants should be introduced to regularize the process so that there is transparency.

They also reason that even though torture is prohibited in international and national law, it still occurs, so torture warrants would introduce accountability and transparency to this murky area of practice. Dershowitz has been attacked mercilessly for even suggesting the possibility of permitting torture. Could there be any circumstances under which torture could be legally contemplated? This is a very difficult question indeed. There are tons of literature that discuss the uselessness of torture in uncovering the truth or helpful information. Evidence obtained under torture is generally excluded in most jurisdictions.

This analogy can be extended to the more difficult question of whether there could or should be exceptions to the inviolability of diplomatic immunity. Suppose an informer, not under torture, informs the host government that a certain diplomatic car is ferrying from the airport, political campaign literature of an opposition party and that that literature was printed abroad and that that literature is a very potent threat to the integrity of the forthcoming election.

More urgent would be verifiable informer information in the form of actual photos of weapons being loaded in a diplomatic vehicle destined for the local military dissidents or radical opposition groups that are predisposed to overthrow the ruling government.

What if there is verifiable information in the form of photos of a cache of arms being kept in the embassy of a foreign government and there are emails indicating that those arms are to be handed over to the local opposition elements to be used to overthrow a legitimate government? How about bundles of foreign money addressed to the local opposition leader in order to enable them to handily win the next election, against popular will but for the injection of the foreign money?

These scenarios are by no means merely hypothetical. Think of all third world governments that have been overthrown by foreign-led military coups-detat; the assassinations of third world leaders over the decades and the invasion of third world countries by foreign mercenaries. Consider the elections that have been sold and/or lost because of the influx of foreign money. Consider the military leaders that have been trained abroad and their continuing ties with the countries and militaries that trained them!

In the scenarios painted above, could there or should there still be the inviolability of diplomatic immunity? Could or should there be exceptions under the scenarios mentioned above? These scenarios represent much more than the theory of the mere "ticking bomb" which usually is based on unverifiable information.

The inviolability of diplomatic immunity was designed for insurmountably valid reasons without which there would be chaos in relations between states.

Sometimes, however, that same diplomatic immunity has led to breakdown in the rule of law, murder, military coups and chaos because other nations do not respect the territorial integrity of other nations when they sponsor military coups, shore up dictators and interfere in the electoral integrity of other nations under cover of diplomatic tools and immunity. This is a worthwhile debate to sustain.

- Munyonzwe Hamalengwa practices law in Toronto and is the author of The Politics of Judicial Diversity and Transformation (2012).

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