Legal Literacy - Diplomatic immunity is a type of legal immunity that ensures that a diplomat can serve safely and cannot be prosecuted or arrested by state apparatus in the place where he or she serves.
Diplomatic Immunity and the Vienna Convention
Based on Article 25 Vienna Convention of 1961 concerning diplomatic relations provides arrangements regarding diplomatic immunity. Article 25 grants rights to diplomatic envoys in the receiving state, which rights may not be infringed upon to guarantee the implementation of the diplomat's duties and responsibilities. Not only diplomats receive diplomatic immunity, but it also applies to the diplomat's family, property, buildings, communications and documentation. Article 29 states that diplomatic officials are inviolable and cannot be arrested or detained (Edy Suryono and Moenir Arisoendha, 1986).
The immunity for family members of diplomats is explained in Article 37 paragraph 1 of the Vienna Convention of 1961 concerning diplomatic relations, which affirms that the rights of diplomats' families cannot be violated because family members of a diplomatic official are part of the household, privileges and diplomatic immunity can only be enjoyed if he or she is not a citizen of the receiving state. Basically, all countries accept the diplomat's husband/wife as a family member.
Case Examples of Diplomatic Immunity
Regarding the legal violation committed by Anne Sacoolas, the wife of a US diplomat in England, who hit a young man, Harry Dunn, resulting in his death, it can be said that Anne Sacoolas has committed a legal violation in the receiving state. Anne Sacoolas is the wife of a US diplomat, thus included as a family member as explained in Article 37 and receives diplomatic immunity from all forms of legal action, including prosecution in the receiving state.
Anne Sacoolas's diplomatic immunity was affirmed by Article 39 paragraph (1), which states that every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. Thus, it is indeed true that Anne Sacoolas cannot be prosecuted and tried under English law.
Resolving this issue through extradition, with the UK requesting the United States to hand over Anne Sacoolas, is also not necessarily feasible, because surrender or extradition, based on the provisions of Article 3 letter e of UN General Assembly Resolution No. 45/116 concerning the Model Treaty on Extradition Obligation to Extradite, stipulates that bilateral extradition agreements can only be applied to civilians or individuals who do not have diplomatic immunity, whereas Anne Sacoolas is protected by Article 37 regarding diplomatic immunity for family members of diplomats.
The solution to hold Anne Sacoolas accountable is for the United States to revoke Anne Sacoolas's diplomatic immunity so that Anne Sacoolas's status changes to that of an ordinary United States citizen or civilian, allowing for surrender or extradition to be carried out so that she can be prosecuted and tried in the English Court. This is because the authority to waive the immunity of diplomatic agents and other persons entitled to immunity under the convention lies with the sending State, as explained in Article 32 of the Vienna Convention of 1961 (Windy Lasut, 2016).
If the United States does not wish to revoke Anne Sacoolas's status to that of a civilian for extradition to the UK, then the United States must make a firm statement that the United States itself will prosecute, by notifying the UK through diplomatic channels. This is because, according to Article 31 paragraph 4, the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. Therefore, the United States still has the right to prosecute Anne Sacoolas.
In addition, the UK, as the receiving state, also has the right to request accountability from the sending state in the form of a formal apology to ensure that the act is not repeated (Lastri Timor Jaya & Putu Tuni Caka Bawa Landra, 2017).
In this case, diplomatic officials and their families do indeed have immunity from the criminal jurisdiction of the receiving state, but it should be noted that diplomatic officials are obliged to always respect the laws of the receiving state, as stated in the Vienna Convention of 1961 in Article 41 paragraph 1, which states that without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. Therefore, accountability must still be sought for violations of the law.
References
Lasut, Windy. 2016. Revocation of Immunity Diplomatic in the Receiving Country According to the Vienna Convention 1961. Jurnal Lex Crimen VolV, No.4
Lastri Timor Jaya & Putu Tuni Caka Bawa Landra. 2017. State Responsibility for Abuse of Authority by Diplomatic Officials. Journal International Law Faculty of Law, Udayana University
Suryono Edy, Moenir, Arisoendha. 1986. Diplomatic Law, Immunities and Privileges. Angkasa : Bandung
*This article is the personal the personal views of the author and does not represent the views of the Indonesian Legal Literacy editorial team.
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