The Curious World of Diplomatic Relations

April 20, 2011 (6.10 am Paris)

by Paul Behrens — guardian.co.uk, Monday 18 April 2011 17.45 BST

When CIA agent Raymond Davis was arrested in Pakistan in January, an international treaty suddenly found itself in the headlines: the Vienna Convention on Diplomatic Relations, which, according to the US State Department, gave immunity to its man in Lahore. An unassuming document at first sight (53 articles, couched in technical language), it has over the years become the bible for diplomats around the world. Today, it celebrates a special birthday – it was signed exactly 50 years ago.

But it’s a strange anniversary. Don’t expect street parties; Foreign offices prefer not to mention Vienna. This is a treaty that has everything: rules on the establishment of diplomatic missions, on the diplomatic bag, the protection of the embassy and even the question of whether diplomats have to pay tax. But it also gives almost unlimited immunity to diplomatic agents. It is a bit embarrassing to be reminded of that.

It was the Vienna convention that in 1981 protected a young hotheaded diplomat by the name of Moussa Koussa, who publicly approved the planned assassination of Libyan dissidents. Investigations into this situation were never going to get very far: as head of the Libyan mission, he was immune from prosecution.

And this was certainly not the worst case. It so happens that last Sunday marked another anniversary: 27 years ago, PC Yvonne Fletcher was killed by bullets fired from the Libyan embassy into a crowd of anti-Gaddafi protesters. The perpetrators had diplomatic immunity and were therefore merely expelled from the country (a suspect was arrested by rebel forces last month). In other cases, diplomats were accused of drink-driving, shoplifting and rape.

Davis, the CIA agent for whom the US claimed diplomatic immunity, was charged with the murder of two motorcyclists.

To be sure, it would be unfair to blame the convention for all of that. After all, the treaty makes clear that diplomats have duties too: they must respect the laws of the receiving state; they must not interfere with its internal affairs. The diplomatic bag must only contain articles for official use (not kidnapped opposition politicians), and the collection of information can only be carried out by “lawful means” (not by bugging the State Department).

But these duties are, on the whole, toothless tigers. Diplomats who commit crimes still can’t be arrested. There are very few sanctions the receiving state can use against them, and they all sound a bit wimpy. You can summon the diplomat to the foreign office, warn him, expel him. But expulsions can stand for anything. They may indicate a sniffle in the relations between the two countries. Or they may be punishment for murder. As a sanction, they have pretty much lost their sting.

So why not the full criminal procedure for diplomats who break the law? In the case of consular officers, immunity is not absolute: in matters of “grave crimes”, consular law allows their arrest.

But it’s a dangerous law. What is a “grave crime”? Blasphemy might be an extremely serious offence in the receiving state; other states do not even criminalise it. And there is another problem: diplomats move in the world of politics and negotiation. For some receiving countries, the temptation would be just too great to use threats of arrest as a tool of political bargaining.

Another suggestion is the creation of an international criminal court for diplomats. That would certainly look more impartial than prosecution by the receiving state, and such a court could use independent international standards. It is an intriguing thought. Only it won’t happen. Members of the UN remember too well the ever-increasing budgets of the existing international criminal tribunals, and there is little appetite for establishing yet another one. Especially since diplomatic misdemeanour, for all its gravity, hardly reaches the level of war crimes and crimes against humanity.

The shortcomings of the Vienna convention cannot be denied – absolute diplomatic immunity in particular is difficult to defend from a moral point of view. But the great strength of the convention does not lie in its moral aims.

On the contrary, what makes the Vienna convention an outstanding success is its pragmatism; the fact that it was content to settle for the realities of diplomatic relations. By so doing, it established a basis for diplomacy with which all states, across all ideological divides, can live. Today, no fewer than 187 countries are party to the convention, which has thus become that rarest of all animals: a treaty that has found the agreement of virtually the entire world.

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