Diplomatic Immunity versus Harm to the Individual: An Attempt at Appraisal

Abstract

The argument of the present paper takes the following form. Part I relates to the introduction of the doctrine of diplomatic immunity as the well known exemption to the theory of the general theories of crime and hence the abstinence of the diplomats for harm done to the individual. Part II describes the history, justifications and the subsequent codification of the customary practices of diplomatic immunity, right upto its current stance. Part III examines the liberties taken by diplomats in the name of the immunities accredited to them. The plethora of incidents itself speak volumes of the trauma undergone by victims of the resulting abuse of the diplomatic immunity. Part IV critically examines a variety of alternative proposals aimed at solving the problem of abuse. The approach developed in the present paper is that the occasional abuse of the diplomatic immunity rules is largely offset by the continuing need for them. The actual number and percentage of abuses affecting fundamental human rights is relatively small, therefore a complete wholesale of the rules or even a too-radical reform, is undesirable from a policy point of view. The solutions appear to lie elsewhere: in devising machineries to aspire the safety of diplomats and their families and at the same time, ensuring that violation of fundamental human rights is minimal, that violations are not without consequence, and that victims are adequately compensated. And finally, Part V emphasizes the need for a re-think relating to the unfretted immunity granted to diplomats , while not for a second reconciling that erasing diplomatic immunity is not an option, but only imposing ‘reasonable restrictions’ to its use and a subsequent quantum of relief for victims so sandwiched between the state’s reciprocal interest to grant immunity to diplomats on one hand and the state’s inability to prosecute the wrongdoers who are guised under the garb of diplomatic immunity,on the other hand.

Keywords: diplomatic immunity, individual harm, victim, diplomats, fundamental human rights of victims