tag:theconversation.com,2011:/id/topics/diplomatic-immunity-28687/articlesDiplomatic immunity – The Conversation2019-11-01T13:01:31Ztag:theconversation.com,2011:article/1255322019-11-01T13:01:31Z2019-11-01T13:01:31ZWhy doesn’t the US just send Anne Sacoolas back to the UK? Here’s what’s at stake in this dispute over diplomatic immunity<figure><img src="https://images.theconversation.com/files/298416/original/file-20191023-119423-evy1oh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The parents of Harry Dunn spoke at a press conference in New York on October 14.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/GBRETA-A-EEUU-ESPOSA-DIPLOMATICO/f73f5e3fced341bc8a0adad69d5a69ee/2/0">AP Photo/Craig Ruttle</a></span></figcaption></figure><p>The U.S. and U.K. are engaged in an international dispute about <a href="https://www.vox.com/2019/10/16/20917164/harry-dunn-white-house-trump">the right to diplomatic immunity</a>. </p>
<p>On August 27, 2019, Anne Sacoolas, wife of a U.S. diplomat resident in the U.K., <a href="https://abcnews.go.com/International/police-travel-us-interview-anne-sacoolas-harry-dunn/story?id=66436396">allegedly struck and killed a British motorcyclist</a>, Harry Dunn, when she was accidentally driving on the wrong side of the road. Shortly afterward, claiming diplomatic immunity, Scoolas fled to the United States.</p>
<p>Since then, Britain has requested that Scoolas return for further questioning. Both countries have argued that the laws and traditions of diplomatic practice support their respective positions. </p>
<p>In my research, I study <a href="https://doi.org/10.1093/isq/sqz054">conflicts over diplomatic practice</a>. While countries might claim legal or traditional rights, contests over diplomatic rights and privileges are fundamentally political, rather than procedural, disputes. </p>
<p>It will likely be resolved on the basis of power, interests and tact – not through appeals to laws.</p>
<h2>Diplomatic immunity</h2>
<p>At the center of the dispute is a contest regarding <a href="https://www.britannica.com/topic/diplomatic-immunity">the scope of diplomatic immunity</a>, a practice that has existed in one form or another throughout history. </p>
<p>In medieval Europe, envoys were seen as representatives of a Christian commonwealth, tasked with encouraging peace. By virtue of this mission, they were considered sacred personages, entitled to the protection of their hosts. Initially this only guaranteed their protection; later it came to mean immunity from all local laws.</p>
<p>As European politics became more complex, the scope of diplomatic immunity expanded to include not just the diplomats themselves, but also their embassies and <a href="https://www.state.gov/diplomatic-pouches/">official mail</a>. The breadth of this privilege was expanded to immunize diplomats’ families from local laws as well.</p>
<p>Over time, what began as a reciprocal practice based in religion and tradition became increasingly regulated. It was finally codified in the <a href="https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iii-3&chapter=3&lang=en">1961 Vienna Convention on Diplomatic Relations</a>, which governed the diplomatic rights and obligations of all signatory countries.</p>
<p>It is to this document that both parties frequently refer in making their respective cases. </p>
<h2>Rights under the Vienna Convention</h2>
<p>The U.S. is making a strong case that, as specified under Articles 29 to 37, the spouse of a diplomat is automatically accorded the rights to inviolability – freedom from harm or molestation – and immunity – exemption from the laws of the receiving country.</p>
<p>However, the UK is also correct to note that, under Article 41, envoys and their dependents are expected to observe the laws of the receiving country. In addition, according to Article 10, typically, the receiving country should be notified of any decision to leave, which neither Sacoolas nor embassy officials did. </p>
<p>Most significantly, the British argue that the privileges of the embassy and its staff begin and end at their border, under Article 39. In returning to the U.S., they say, Sacoolas has lost those rights and entitlements. </p>
<p>Furthermore, Article 32 shows that the U.S. is in no way obliged to uphold any laws of immunity on Scoolas’ behalf and can waive them if it wishes. This is something that U.S. itself has requested and received <a href="https://www.latimes.com/archives/la-xpm-1997-dec-20-mn-531-story.html">from others in the past</a>, such as when a Georgian diplomat struck and killed a Maryland teenager in 1997.</p>
<p>Despite all these technicalities, what this discussion really illustrates is that international law cannot provide the solution to this conflict. Both sides can point to the Vienna Convention and to diplomatic tradition to support their case. </p>
<p>Any decision by the British to press this issue will be a political choice, not a legal imperative.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/298767/original/file-20191025-173528-1n9jl6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/298767/original/file-20191025-173528-1n9jl6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/298767/original/file-20191025-173528-1n9jl6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/298767/original/file-20191025-173528-1n9jl6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/298767/original/file-20191025-173528-1n9jl6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/298767/original/file-20191025-173528-1n9jl6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=490&fit=crop&dpr=1 754w, https://images.theconversation.com/files/298767/original/file-20191025-173528-1n9jl6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=490&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/298767/original/file-20191025-173528-1n9jl6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=490&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Donald Trump travels in his motorcade to Buckingham Palace during a visit in June 2019.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-uk-3rd-june-2019-us-1415091257?src=7hr1lS6ngWOdE3khNHdShQ-1-17">Michael Tubi/Shutterstock.com</a></span>
</figcaption>
</figure>
<h2>Symbols of the state</h2>
<p>Why is this issue political? Why can’t the U.S. simply waive Scoolas’ diplomatic rights, or the British just look the other way? </p>
<p>Part of the answer is the symbolic nature of this dispute.</p>
<p>Scholars, politicians and journalists often discuss countries in anthropomorphic terms, ascribing them human characteristics and personality. For example, one might say that “the UK decided” or “Russia behaved suspiciously.” </p>
<p>But this language is misleading. In reality, there are are very few places where we can actually reach out and touch or see the “state.” Flags and memorial sites are two examples of symbols that actually act as physical expressions of a country. Diplomats are another. </p>
<p>Those symbols can take on outsized political significance, as they stand in for the country itself. Studies have shown that ordinary people tend to be sensitive to their country’s <a href="https://doi.org/10.1017/S0020818307070282">reputation</a>, often treating it as a <a href="https://doi.org/10.1111/j.1571-9979.2008.00182.x">sacred object or being</a>, the dignity and honor of which <a href="https://doi.org/10.1017/S1752971910000308">should be protected</a>.</p>
<p>To put it another way, when a country’s symbols are threatened, many people take it personally.</p>
<p>Disagreements featuring individual diplomats are always fraught with the possibility of diplomatic incident, due to the symbolic association between the bodies of diplomats and the “body” of the sovereign state. </p>
<p>Consequently, references to legal principles probably will not satisfy audiences who see their country as a “sacred value” that cannot be bargained away. The public probably will be unsatisfied by any legal result that harms the country’s dignity, even if it is technically correct.</p>
<p>Furthermore, publicizing the problem makes it harder to solve. I think that drawing increased public attention to this dispute, as both President Donald Trump and Prime Minister Boris Johnson have done, likely will make a mutually agreeable settlement harder to achieve – at least while the domestic audiences of both sides are watching.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/125532/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Banks does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Both sides can point to the Vienna Convention and to diplomatic tradition to support their case.David Banks, Professorial Lecturer of International Politics, American University School of International ServiceLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/984122018-06-19T11:05:58Z2018-06-19T11:05:58ZBoris Becker: can the sports star really claim diplomatic immunity to avoid his debts? A lawyer investigates<p>Boris Becker is best known as a champion tennis player. But it has now emerged that he has a political life. Since April 27 2018 he has been the Central African Republic’s attaché to the European Union on sporting and humanitarian affairs.</p>
<p>At that moment, Becker became a “diplomatic agent”. This is a role for which Article 31 of the 1961 <a href="http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf">Vienna Convention on Diplomatic Relations</a> provides diplomatic immunity from the criminal, civil and administrative jurisdiction of the “receiving state” – where the representative is on special mission. In Becker’s case, that apparently means the UK. The sports star, who was <a href="https://www.theguardian.com/sport/2017/jun/21/boris-becker-declared-bankrupt-over-substantial-debt">declared bankrupt</a> in 2017 over debts to private bank Arbuthnot Latham & Co, now claims he is immune from being pursued for further payments. So, is he right? Is he protected by his diplomatic status? </p>
<p>Becker claims he should not to be subjected to legal process in the courts of any country for as long as he remains a recognised diplomatic agent. But some exceptions exist. For example, Article 31c of the convention provides that immunity doesn’t cover professional or commercial activities exercised by the diplomatic agent in the receiving state outside their official functions. So we need to decide what is meant by “official functions”.</p>
<p>Article 3 of the same convention clarifies this by setting out the general framework for diplomatic functions. The extent of this article has been interpreted as covering all other incidental actions which are indispensable for the performance of the general functions of a diplomat. At first glance, this broad interpretation seems to be in favour of Becker. But could international law really be stretched to the extent that a personal debt turns into a diplomatic issue? As much as we love sports veterans, are we comfortable seeing the “sanctity” of the rule of law challenged by them in this way?</p>
<h2>National courts</h2>
<p>But deciding when Article 31 can be activated is a complex matter. The article itself doesn’t set out any procedural provision as to when or how diplomatic immunity should be pleaded or established in national courts. These matters are therefore dealt with by national law – in this case the <a href="https://www.legislation.gov.uk/ukpga/1964/81/contents">Diplomatic Privileges Act of 1964</a>, which applies the relevant provisions of the convention in the UK.</p>
<p>In the UK, diplomatic immunity is conferred on all entitled members of a foreign mission who have been notified to, and accepted by, the Foreign and Commonwealth Office (FCO) as performing a diplomatic function. Immunity is dependent on rank, and ranges from immunity from criminal and civil and administrative jurisdiction to immunity for official acts only. The Diplomatic Protection Group of the Metropolitan Police or the FCO can advise if an offender has diplomatic immunity. Of course, the tweet in which Becker announced his affiliation to the Central African Republic can’t be considered sufficient evidence. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"989853343131586561"}"></div></p>
<p>Becker’s case also clashes with the very nature and purpose of diplomatic protection, which is intended to protect “the right of the state” – in this example, the interests of the Central African Republic in the UK. It’s debatable how diplomatic protection for Becker protects the interests of the republic – or indeed anyone other than himself.</p>
<h2>Old debts and new status</h2>
<p>It’s worth noting that Becker is claiming retroactive protection under the convention for indiscretions that date back to before he was appointed a representative of the Central African Republic. That’s unusual in the law and raises the question: can diplomatic immunity be retroactive? Overall, if a defendant becomes entitled to immunity, they may raise it as a bar to proceedings already instituted against them and the courts must discontinue any such proceedings – if they accept their entitlement as a diplomat. However, in Becker’s case the proceeding was already concluded – it’s his debts that are outstanding. So it’s less clear if he can claim immunity. </p>
<p>The Foreign Office is therefore left with the following options: request Becker be withdrawn from the UK (and his creditors); ask that the Head of Mission waive immunity so that a prosecution can proceed (this seems the most common solution adopted in <a href="https://www.stuff.co.nz/national/politics/103232884/european-union-asked-to-waive-immunity-for-wellington-rental-stoush">previous cases</a>.</p>
<p>Becker is effectively making his debts the Central African Republic’s problem. And the nation may well conclude that having him represent its sporting interests just isn’t worth the <a href="https://www.independent.co.uk/news/uk/home-news/boris-becker-diplomatic-immunity-bankruptcy-central-african-republic-a8405296.html">trouble</a>. It would not be unthinkable that, in order to avoid a diplomatic standoff with a global player such as the UK, the county would step back and waive Becker’s immunity.</p><img src="https://counter.theconversation.com/content/98412/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helga Hejny does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The tennis star claims his role as a sports attaché for the Central African Republic means he doesn’t have to repay his debts. Is he right?Helga Hejny, Lecturer in Law, Anglia Ruskin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/969982018-05-23T09:47:35Z2018-05-23T09:47:35ZThe ‘lawe of nations’: how diplomatic immunity protected an Elizabethan assassin<figure><img src="https://images.theconversation.com/files/219952/original/file-20180522-51121-56wpt2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mary Queen of Scots was at the centre of numerous plots to kill Queen Elizabeth I.</span> <span class="attribution"><span class="source">Pierre Révoil (1776–1842)</span></span></figcaption></figure><p>A foreign state sponsors a political assassination on English soil. The attempt fails. In its aftermath, Her Majesty’s government asks her expert advisers what is the appropriate level of response and what action should be taken against murderous foreign agents and state-sponsored terrorism.</p>
<p>Sound familiar? It should. These are questions the UK government has asked time and time again when dealing with hostile foreign agents operating on British soil – most recently following the <a href="http://www.bbc.co.uk/news/uk-44165718">attempted murder of former Russian spy, Sergei Skripal</a> and his daughter. </p>
<p>Sometimes these hostile foreign agents are under diplomatic cover. Elizabeth I faced just such situation in 1584, when the Spanish ambassador in London, Don Bernardino de Mendoza, was implicated in the <a href="http://www.tudorplace.com.ar/Documents/Throckmorton_plot.htm">Throckmorton Plot</a> to assassinate her. By replacing Elizabeth on the throne with her Catholic cousin Mary Queen of Scots, the plan was to restore Protestant England to Catholicism. Elizabeth’s Privy Council wanted Mendoza tried for treason, but they weren’t sure of the legality of this move. They solicited the advice of two of Europe’s most prestigious experts in international law, <a href="https://www.britannica.com/biography/Alberico-Gentili">Alberico Gentili</a> and <a href="https://sites.google.com/site/countyhistorian/jean-hotman">Jean Hotman</a>.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/219951/original/file-20180522-51095-10wfz6q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/219951/original/file-20180522-51095-10wfz6q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1002&fit=crop&dpr=1 600w, https://images.theconversation.com/files/219951/original/file-20180522-51095-10wfz6q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1002&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/219951/original/file-20180522-51095-10wfz6q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1002&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/219951/original/file-20180522-51095-10wfz6q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1259&fit=crop&dpr=1 754w, https://images.theconversation.com/files/219951/original/file-20180522-51095-10wfz6q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1259&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/219951/original/file-20180522-51095-10wfz6q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1259&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Bernardino de Mendoza by an unknown artist.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
</figcaption>
</figure>
<p>Both of them were resident foreigners – one, Italian, the other French – who had come to England some five years earlier as Protestant asylum seekers. Both born in 1552, they held academic posts in Oxford colleges. Both, too – via relationships with royal favourite Robert Dudley, Earl of Leicester – were recognised at Court. So what satisfaction would they give a Privy Council baying for Mendoza’s blood? </p>
<p>None. Their advice <a href="https://books.google.co.uk/books?id=_g3JBQAAQBAJ&pg=PA52&lpg=PA52&dq=throckmorton+case+ambassador+mendoza+hotman+gentili&source=bl&ots=alUJo-GUzN&sig=s2D5Ful0M1aUaZFjXn8mlQfp2w0&hl=en&sa=X&ved=0ahUKEwif6cOns5vbAhWItVkKHfKfAoUQ6AEINTAB#v=onepage&q=throckmorton%20case%20ambassador%20mendoza%20hotman%20gentili&f=false">was unequivocal</a>. Ambassadors, even criminal ambassadors, were protected by diplomatic immunity “infallibly within the sanctuarie of the Lawe of Nations”. “The right of embassy” was “defended by a rampart of human and divine authority”, “the person” of the ambassador being “adjudged holy, sacred, and inviolable”. The Privy Council’s only recourse, they said, was to order Mendoza recalled. Their advice was followed. When Mendoza ignored the order, he was transported to Calais.</p>
<h2>Personality of the Prince</h2>
<p>Later, <a href="https://academic.oup.com/ahr/article/32/2/297/38572">Gentili</a> and <a href="http://ota.ox.ac.uk/tcp/headers/A03/A03724.html">Hotman</a> published books emerging directly out of the Mendoza case that established the terms of reference for England’s international diplomacy. They argued that the ambassador is a stand-in for the sovereign, someone “invested with the personality of his Prince” who “makes the Prince to speake”, but who never speaks in his own voice, is never permitted to “think beyond his instructions”. </p>
<p>Any person who “does violence to an ambassador” commits “an attack on the state”. Theoretically, since “the whole grace” of diplomacy “hath no other end than Honour”, a dishonourable embassy is an oxymoron. But in practice, “there is not almost any publike charge, wherein there is more lying”. Thus, some call ambassadors “honourable spies”. </p>
<p>What did ordinary Englishmen know about the business of diplomacy at the time? They weren’t likely to be reading Gentili or Hotman. But they were going to the theatre. And it was on public stage, in plays from Henry V to Hamlet, Coriolanus to Troilus and Cressida, that William Shakespeare put the practice of diplomacy squarely in the popular imagination. In his fictions of embassy, Shakespeare picked up the historic examples Gentili and Hotman cited and the topics they debated. </p>
<p>In Antony and Cleopatra, spectators saw what happens to the perfidious ambassador Caesar sends to Cleopatra; sensationally, Antony ignores diplomatic immunity and has him flogged. This is a big deal:</p>
<blockquote>
<p>Tug him away: being whipp’d,<br>
Bring him again: this Jack of Caesar’s shall<br>
Bear us an errand to him.</p>
</blockquote>
<p>As we know, things don’t end well for Antony or Cleopatra.</p>
<h2>Death threat in Venice</h2>
<p>If Shakeapeare wasn’t familiar with their work, it’s likely that both Gentili and Hotman were among the sources Henry Wotton turned to as he prepared, in the summer of 1604, for an assignment from King James I. Wotton knew both men, having studied under Gentili at Oxford and also having a connection to Hotman’s father, Francis. After an interruption of 33 years, the Crown wanted Anglo-Venetian relations restored. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/219950/original/file-20180522-51095-1udcc3f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/219950/original/file-20180522-51095-1udcc3f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=709&fit=crop&dpr=1 600w, https://images.theconversation.com/files/219950/original/file-20180522-51095-1udcc3f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=709&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/219950/original/file-20180522-51095-1udcc3f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=709&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/219950/original/file-20180522-51095-1udcc3f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=891&fit=crop&dpr=1 754w, https://images.theconversation.com/files/219950/original/file-20180522-51095-1udcc3f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=891&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/219950/original/file-20180522-51095-1udcc3f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=891&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Henry Wotton by Michiel Jansz van Mierevelt (1620).</span>
<span class="attribution"><span class="source">Sotheby's</span></span>
</figcaption>
</figure>
<p>Wotton was appointed ambassador, arriving in Venice, coincidentally, just about the time the king was settling down at Whitehall to watch a new play by Shakespeare, Othello: The Moor of Venice. </p>
<p>For the following six years, Wotton didn’t so much restore relations as invent them from scratch – and, in doing so, tested diplomatic theory to the limit. For how could he act only “on instructions” when it took the post 21 days to reach London – and the instructions a further 21 days to return? Far from having little business to conduct there (as secretary of state, Robert Cecil supposed, “the passages of affaires between us and that state [being] very barren”) he dealt with everything from trade and taxation to suspected murder and piracy. </p>
<p>While representing English affairs in fortnightly audiences (without notes, in Italian), before the doge and his council, he simultaneously – secretly, if rather cackhandedly – organised a network of “intelligencers” to uncover anti-English, anti-Protestant practices in Rome and, during the <a href="http://www.british-history.ac.uk/cal-state-papers/venice/vol10/pp438-451">Interdict Crisis of 1606</a>, agitated for a Protestant revolution in Venice – including, if required, war in Europe. </p>
<p>On several sensational occasions, his career in Venice crossed paths with early modern versions of the diplomatic problems we’re facing today – not least when hitmen (perhaps employed by paymasters in Rome) failed in the political assassination of a “troublesome priest”, one Paolo Sarpi, who was suspected of having too much “conversation” with “heretics” in the English embassy. Wotton’s chaplain, William Bedell, was having Italian lessons with Sarpi and the pair were suspected of compromising conversations together.</p>
<p>How did the Venetian state respond to the Roman inquisitors who bayed for Wotton’s blood? Wotton was the ambassador – so his position as ambassador, “defended by a rampart of human and divine authority”, meant his person was “inviolable”. They didn’t even send him home.</p><img src="https://counter.theconversation.com/content/96998/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Carol Rutter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When the Spanish ambassador to Elizabeth I’s court was implicated in a plot to kill her, he was protected by the fledgling laws of diplomacy.Carol Rutter, Professor of Shakespeare and Performance Studies, University of WarwickLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/827682017-08-22T08:19:51Z2017-08-22T08:19:51ZExplainer: Grace Mugabe and the intricacies of diplomatic immunity<figure><img src="https://images.theconversation.com/files/182749/original/file-20170821-27160-146vdoc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Zimbabwean first lady Grace Mugabe
has been granted immunity.</span> <span class="attribution"><span class="source">EPA/Khaled el-Fiqi </span></span></figcaption></figure><p><em>Zimbabwe’s first lady, Grace Mugabe, has been <a href="https://www.timeslive.co.za/politics/2017-08-20-dirco-confirms-grace-mugabe-has-been-granted-diplomatic-immunity/">granted diplomatic immunity</a> and allowed to leave South Africa after allegedly attacking and injuring a young South African woman, Gabriella Engels (20), in Sandton, Johannesburg. Politics and Society Editor, Thabo Leshilo, asked international law expert, Professor Hennie Strydom to unpack the issues.</em></p>
<p><strong>Was Grace Mugabe entitled to diplomatic immunity?</strong></p>
<p>Broadly speaking, there are three scenarios in which immunity as a form of procedural protection against criminal proceedings in the courts of a foreign country can arise. </p>
<p>Firstly, in the case of immunity granted to foreign heads of state and government; secondly in the case of immunity enjoyed by diplomatic and other special envoys, their families and staff; and thirdly in the case of an ad hoc granting of immunity to a person to perform an official function in another state. </p>
<p>Grace Mugabe doesn’t qualify under the first two categories. </p>
<p>South Africa is, by law, entitled to extend immunity to people in the third ad hoc category. But I am of the view that doing so to cover an incident retrospectively is an unlawful and fraudulent use of immunity. </p>
<p>According to the department of international relations, she didn’t <a href="https://www.iol.co.za/news/special-features/zimbabwe/no-diplomatic-immunity-for-grace-mugabe-10792922">have immunity</a> when she entered the country and she was apparently not on the department’s list of persons entitled to immunity. Whether or not she was on an official visit is also in dispute.</p>
<p><strong>What is diplomatic immunity and how does it work?</strong></p>
<p>The granting of diplomatic and other immunities is one of the oldest practices in international law. It’s intended to make it possible for special envoys to perform their official functions without hindrance when they’re visiting another country on official international relations business. </p>
<p>But immunity comes with responsibilities too. Under international law, envoys have a duty to respect the laws of the country that they’re in. </p>
<p>The rules and principles regulating the granting and use of diplomatic immunities are well-established. The main sources are the <a href="http://www.international.gc.ca/protocol-protocole/vienna_convention-convention_vienne.aspx?lang=eng">Vienna Convention on Diplomatic Relations of 1961</a>, the <a href="https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=III-6&chapter=3&lang=en">Vienna Convention on Consular Relations (1963)</a> and national legislation. In the case of South Africa, the <a href="http://www.gov.za/sites/www.gov.za/files/38310_gon1009.pdf">Diplomatic Immunities and Privileges Act </a> and the Foreign States Immunities <a href="http://www.gov.za/documents/foreign-states-immunities-act-24-mar-2015-1355">Act of 1981</a> set out who can get immunity and under what conditions.</p>
<p><strong>Can immunity be used to deny a victim justice?</strong></p>
<p>Yes it can. Where immunity applies, the remedies are limited to:</p>
<ul>
<li><p>the receiving state declaring the perpetrator of the unlawful act a <em>persona non grata</em> and sending them back to their country of origin; </p></li>
<li><p>the sending state waiving the immunity in which case the perpetrator can be prosecuted; and,</p></li>
<li><p>the perpetrator being prosecuted in the country of origin. </p></li>
</ul>
<p>In the case of Grace Mugabe there is no realistic prospect that immunity will be waived nor that she’ll be prosecuted in Zimbabwe.</p>
<p><strong>How else can victims get justice?</strong></p>
<p>In certain cases, civil action against the perpetrator is possible, including the attachment of property owned by them in the country where the abuse has taken place. In the case of the Grace Mugabe incident, the alleged victim of the assault, Gabriella Engels, has a constitutional right to a remedy. If this right is infringed by the granting of immunity, there is a heavy onus on the South African government to justify why it did so. Failure to justify it in review proceedings may render the South African government liable.</p><img src="https://counter.theconversation.com/content/82768/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hennie Strydom receives funding from the National Research Foundation. </span></em></p>According to South Africa’s department of international relations, Grace Mugabe didn’t have immunity when she entered the country.Hennie Strydom, Professor in International Law, NRF Research Chair in International Law, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/827212017-08-21T12:13:20Z2017-08-21T12:13:20ZGrace Mugabe: why diplomatic immunity isn’t always an ‘out of jail’ ticket<figure><img src="https://images.theconversation.com/files/182751/original/file-20170821-27163-jy38xl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Zimbabwean first lady Grace Mugabe with her husband, President of Zimbabwe Robert Mugabe. </span> <span class="attribution"><span class="source">EPA/Khaled el-Fiqi </span></span></figcaption></figure><p>Grace Mugabe, the wife of President Robert Mugabe of Zimbabwe, is accused of <a href="http://www.news24.com/SouthAfrica/News/grace-fury-20170819">assaulting a young woman</a> while on a visit to South Africa. A week after the incident in a hotel in Sandton, Johannesburg’s upmarket central business district, a South African government minister announced that she had been <a href="https://www.timeslive.co.za/politics/2017-08-20-dirco-confirms-grace-mugabe-has-been-granted-diplomatic-immunity/">granted diplomatic immunity</a>. She has subsequently <a href="http://www.news24.com/Africa/Zimbabwe/breaking-grace-mugabe-returns-to-zimbabwe-despite-assault-claim-20170820">returned to Zimbabwe</a> without any attempt by the South African Police Service to arrest her.</p>
<p>The incident has sparked a <a href="https://www.da.org.za/2017/08/grace-mugabe-no-right-diplomatic-immunity-must-arrested/">furious debate</a> about whether she should have been granted immunity, and what this means for the victim of the alleged assault. </p>
<p>At the time of the alleged assault Grace Mugabe was on a private, not official, visit to South Africa. She wasn’t <a href="https://www.timeslive.co.za/news/south-africa/2017-08-15-grace-mugabe-to-appear-in-court-over-johannesburg-assault-charge/">granted immunity before her visit</a> and it’s not clear on what basis she’s now been granted it. Normally diplomatic immunity is granted to an individual envoy by prior agreement, or by the Minister of International Relations if it is in the interests of a country. </p>
<p>Since it is conceivable that Grace Mugabe might visit South Africa again in future it’s worth reviewing the rules, considerations and implications of diplomatic immunity.</p>
<h2>Rules governing diplomatic immunity</h2>
<p>Grace Mugabe was neither a visiting head of state or government, nor a diplomat representing her country – both of which would have qualified her for diplomatic immunity. </p>
<p>There is no basis in customary, conventional international law or domestic law for the spouse of a head of state to claim – as a right or entitlement – some form of immunity when visiting a foreign state. </p>
<p>A foreign state – in this case South Africa – can, of course, grant immunity. But there’s a legal framework that governs this. In her case, as the spouse of a foreign head of state, she could be granted immunity from the criminal and civil jurisdiction of the courts in South Africa if, for instance, she was on a visit as an envoy of her country to attend an international conference, or if she was accompanying her husband on an official visit. The fact that she happens to be an important person isn’t a good enough criterium. </p>
<p>In other words, it’s not status that serves as a basis for granting immunity. Rather, it’s the nature of the person’s visit. </p>
<p>South Africa’s <a href="http://www.dirco.gov.za/department/diplomaticimmun.htm">Diplomatic Immunities and Privileges Act</a> gives the minister of International Relations and Cooperation the power to grant immunity to foreign visitors who represent their countries on official business. The act sets out how this must be done. If there’s no prior agreement that already covers the visit, a notice must be published in the Government Gazette. </p>
<p>What’s clear is that the spouses of foreign heads of states, members of foreign royal families, international celebrities and the like, can’t be granted immunity on a whim. There are laws, protocols, and procedures to be followed. </p>
<p>Formalities aside, it’s also important to keep in mind the underlying rationale of diplomatic immunity in international law and international relations. Diplomatic immunity is a principle with ancient roots and forms an integral part of international relations. At the heart of it is the idea that diplomats – or others representing their countries or international organisations – must be able to pursue their official duties free from interference by the host state. </p>
<p>Foreign envoys who are granted immunity therefore enjoy immunity from the criminal and civil jurisdiction of the courts of the host country.</p>
<h2>What about justice for the victim?</h2>
<p>Diplomatic immunity can indeed be seen as a shield against accountability for criminal conduct or civil obligations. The abuse of diplomatic immunity can therefore lead to impunity. </p>
<p>If a person who enjoys diplomatic immunity is accused of a crime, and their immunity isn’t waived, it’s normal practice for the host country to declare the person to be <em>persona non grata</em>. They are then expected to leave the country. But that also means there is no justice for the victim of the crime. </p>
<p>Nevertheless it’s important to remember that the immunity initially granted to the diplomat or envoy does not attach to that person in his or her personal capacity. It would have to have been granted in one or other other official capacity. </p>
<p>The right to institute a prosecution for most crimes (including assault) lapses only after 20 years. There are exceptions. This right never lapses in the case of serious offences such as murder, rape, robbery with aggravated circumstances, and the atrocity crimes of genocide, war crimes and crimes against humanity.</p>
<p>It’s conceivable that a person who once enjoyed diplomatic immunity, but who no longer benefits from it, will face justice at some future date. This assumes that they find themselves back in the country in which the alleged crime took place.</p>
<p>It would be hard to justify continued immunity for someone accused of a crime given that criminal conduct, including assault, is not normally associated with official business between two sovereign states.</p>
<p>That’s not to say that the victim can easily get justice. Diplomatic immunity conferred on visiting envoys and representatives means immunity from prosecution and civil action. This means that a victim will be frustrated in their quest for justice in the courts. </p>
<p>However, that doesn’t mean it’s impossible. Taking into account the rules around the prescription of the right to institute prosecution of crime, and the underlying rationale of diplomatic immunity as a tool to facilitate official political and commercial relations between sovereign states, it can be argued that diplomatic immunity isn’t the impenetrable shield of impunity imagined by some.</p><img src="https://counter.theconversation.com/content/82721/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gerhard Kemp receives funding from the National Research Foundation. He serves on the board of the Institute for Justice and Reconciliation. Views are his own and in his personal capacity.</span></em></p>There is no basis in customary, conventional international law or domestic law for the spouse of a head of state to claim - as a right - some form of immunity when visiting a foreign state.Gerhard Kemp, Professor of Criminal Law and International Criminal Law, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/659072016-10-02T19:39:24Z2016-10-02T19:39:24ZWhat Africa should demand from the next United Nations secretary general<figure><img src="https://images.theconversation.com/files/139415/original/image-20160927-14625-1cozt97.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The new secretary general of the United Nations should drive substantive reforms, particularly accountability of the international body.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>African governments and civil society should have both institutional and substantive expectations of the next <a href="http://www.un.org/pga/71/sg/">UN Secretary General</a>.</p>
<p>The institutional expectations should focus on feasible reform of the United Nations itself. This would mean African governments de-emphasising the demand for improved <a href="https://theconversation.com/time-for-africa-to-push-for-global-south-voices-at-the-un-decision-making-table-65830">representation</a> on the Security Council and <a href="http://allafrica.com/stories/201602100416.html">reforms in voting procedures</a>. The complex politics surrounding these two issues make change unlikely during the five-year term of the next secretary general. </p>
<p>Instead, Africa should prioritise the need for the UN itself to become <a href="https://theconversation.com/what-can-be-done-to-stop-the-united-nations-abusing-its-immunity-61227">more accountable</a>.</p>
<p>The world body promotes the sensible idea that good governance requires those who exercise public <a href="http://www.ohchr.org/EN/Issues/Development/GoodGovernance/Pages/GoodGovernanceIndex.aspx">authority</a> to be held accountable. Unfortunately, the UN does not practice what it preaches. In fact, it exercises significant power over the lives of many Africans without being accountable for its actions.</p>
<p>For example, when officials who run UN refugee camps <a href="http://www.pri.org/stories/2016-01-14/un-peacekeepers-are-being-accused-child-sex-abuse-again">behave abusively</a> there is no forum through which victims can seek relief. In fact, the world body has been reluctant to take responsibility for <a href="https://theconversation.com/why-the-un-isnt-winning-its-battle-against-sexual-abuse-by-peacekeepers-52866">sexual offences</a> committed by its peacekeepers. </p>
<p>Similarly, to date, the UN has not accepted responsibility for nor provided a means through which it can be held accountable by those it harmed by bringing <a href="http://www.nytimes.com/2016/08/22/opinion/dodging-accountability-at-the-united-nations.html">cholera to Haiti</a>. The same applies to its failure to protect refugees in Kosovo from <a href="http://www.nytimes.com/2016/07/14/world/europe/kosovo-human-rights-panel.html">lead poisoning</a>. </p>
<h2>Relying on organisational immunity</h2>
<p>The worst case would be a new secretary general who does not prioritise this institutional reform. This would mean a new UN boss who thinks it can continue relying on its organisational immunity; to avoid being accountable to those it harms through its negligence or misconduct. </p>
<p>The best case scenario would be a secretary general who establishes an independent mechanism to hold the UN accountable when its actions cause unnecessary harm. This will ensure that there is an effective means to hold the world body accountable. This mechanism, where appropriate, should also offer a remedy for its victims. </p>
<p>Africa should encourage the next UN chief to create a formal, independent accountability mechanism. Africans may then be able to obtain an effective remedy.</p>
<h2>Africa’s substantive concerns</h2>
<p>Africa’s substantive concerns relate to peace and security and development. The continent should expect the next secretary general to enhance coordination between the UN and African regional organisations. These include the <a href="http://www.au.int/">African Union</a>, whose mandate includes promoting peace and security and sustainable development. It also promotes international cooperation within the framework of the <a href="http://www.un.org/en/charter-united-nations/">UN Charter</a> and the Universal Declaration of <a href="http://www.au.int/en/about/nutshell">Human Rights</a>. </p>
<p>The next secretary general should ensure that the different UN specialised agencies and programmes work effectively and efficiently with African stakeholders. Given the UN’s limited resources, the secretary general should prioritise those issues that affect Africa but are global in scope and ramifications. The most pressing are Africa’s <a href="http://www.iupui.edu/%7Eanthkb/a104/kenya/african%20migration.htm">migration</a> and <a href="http://www.resettlement.eu/page/somali-refugees-kenya-ethiopia">refugee</a> problems. They apply both within and outside the continent. </p>
<p>The other substantive priority is the promotion of the Sustainable Development Goals <a href="http://www.un.org/africarenewal/magazine/december-2014/sustainable-development-goals-new-targets-hold-promise-africa">(SDGs)</a>. These are connected to both Africa’s migration and refugee challenges and to global security. Africans risk their lives fleeing persecution, violence and poverty. They will only remain at home when they feel their countries can offer them the possibility of a life with dignity and opportunity.</p>
<p>Creating these conditions will require the successful candidate to work with African governments, civil society and other stakeholders. They include donors, international and regional organisations and international NGOs. The SDGs provide a useful road map for guiding the actions of all these parties. </p>
<h2>For the benefit of Africans</h2>
<p>The secretary general can play a critical role in encouraging and coordinating the all these parties’ actions to benefit Africa’s citizens. This would also benefit the countries to which Africans tend to migrate, both on the continent and elsewhere.</p>
<p>The worst case scenario is for the next secretary general to be overly sensitive to the political concerns of the largest and most powerful UN members. Such a person is likely to prioritise the concerns of other regions to the detriment of Africa.</p>
<p>Africa’s best hope for the new secretary general is someone who ensures that Africa’s concerns and needs remain high on the global agenda. This will help ensure that the UN’s African programmes have enough money and personnel. It will also make it an effective contributor to peace, security and the implementation of the SDGs in Africa.</p><img src="https://counter.theconversation.com/content/65907/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danny Bradlow's chair receives funding from the National Research Foundation</span></em></p>Africa should focus on the feasible reforms of the UN and de-emphasise its demand for improved representation on the Security Council voting reforms, given the complex politics around these issues.Danny Bradlow, SARCHI Professor of International Development Law and African Economic Relations, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/612272016-06-26T13:53:30Z2016-06-26T13:53:30ZWhat can be done to stop the United Nations abusing its immunity<figure><img src="https://images.theconversation.com/files/127700/original/image-20160622-19777-vj4qrj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Outgoing UN Secretary-General Ban Ki-moon's successor faces the challenge of making the organisation more accountable.</span> <span class="attribution"><span class="source">UN</span></span></figcaption></figure><p>The passage of time can play cruel tricks on noble intentions. The person selected as the new United Nations (UN) <a href="http://www.unelections.org/?q=node/71">Secretary-General</a> later this year should keep this in mind as he or she evaluates how effectively the UN is responding to the challenges of the 21st century.</p>
<p>When the <a href="http://www.un.org/en/index.html">UN</a> and its specialised agencies were created after the <a href="http://www.un.org/en/sections/history/history-united-nations/">Second World War</a>, their founders were concerned that they would not be able to perform their assigned functions – to promote peace and security, international economic and social cooperation, economic development and human rights – if they were vulnerable to legal pressure from their member states. For example, the organisations would not be able to perform their assigned functions if a member state could threaten to arrest the officials of these organisations or to confiscate the materials they had collected when they were on official missions to the state. </p>
<p>To minimise this risk, the founders bestowed “<a href="http://legal.un.org/avl/ha/cpiun-cpisa/cpiun-cpisa.html">functional immunity</a>” on these international organisations. This ensured that they would not be subject to the jurisdiction of the member states or their courts when performing the functions for which they were created. This is different from diplomatic immunity, which protects accredited diplomats from the jurisdiction of their host states for all purposes. Thus, an off-duty UN official who is involved in a car accident can be sued for causing the accident, while an off-duty diplomat who causes an accident cannot. </p>
<p>At the time, this made good sense. The organisations were expected to primarily function as intergovernmental bodies. As such they would only interact with the governments of their member states, who would decide whether and how to use their services in their domestic affairs. There did not seem to be any need for them to engage directly with the citizens of their member states or for them to be directly accountable to those citizens.</p>
<p>But, over time, the scope of operations of these international organisations have expanded due to a mix of factors. These include:</p>
<ul>
<li><p>the end of colonialism;</p></li>
<li><p>changes in the international economic system;</p></li>
<li><p>our evolving understanding of the development process;</p></li>
<li><p>the evolution of international human rights law; and </p></li>
<li><p>our greater awareness of the environmental consequences of our actions. </p></li>
</ul>
<h2>Changed roles of international organisations</h2>
<p>Today these organisations play important roles in the governance of some of their member states. Their decisions and actions directly affect the citizens of these states. For example, the UN took over some of the functions normally performed by governments during political transitions in <a href="http://www.un.org/en/peacekeeping/missions/past/untagFT.htm">Namibia</a>, <a href="http://www.un.org/en/peacekeeping/missions/past/unmit/">Timor-Leste</a> and <a href="http://www.un.org/en/peacekeeping/missions/past/unmibh/background.html">Bosnia</a>. It also did so in the <a href="http://www.unhcr.org/">refugee camps</a> for people from countries like Afghanistan, Sudan and Iraq.</p>
<p>This expansion in the international organisations’ missions did not cause them or their member states to revise their functional immunity. This meant that their immunity expanded together with their expanding functions. </p>
<p>The result is that international organisations, contrary to the human rights and good governance principles that they espouse for the governments of their member states, are not accountable to those individuals who are adversely affected by their decisions and activities. Instead, they can use the immunity that was intended to shield them from interference by their member states as a sword to ward off claims by those they are alleged to have harmed.</p>
<h2>Acting with impunity</h2>
<p>Two recent examples demonstrate the gravity of this problem. First, in March 2016, Haitian plaintiffs argued to a US court that it should, despite all the legal precedents to the contrary, overturn a <a href="http://www.ijdh.org/2015/01/topics/health/united-states-district-court-southern-district-of-new-york/">lower court’s decision</a> denying their request to lift the UN’s immunity. That would allow them to sue it regarding its negligent actions in Haiti. </p>
<p>They allege that in 2010 the UN mission to Haiti <a href="http://www.ijdh.org/2016/03/topics/law-justice/unofficial-transcript-from-oral-argument-in-georges-v-united-nations-312016/">introduced cholera</a> into the country, which had been free of cholera for about 100 years. The evidence indicates that the cholera was brought to Haiti by infected soldiers who, contrary to good practice, had not been tested for the virus before leaving their home country, where cholera was widespread. Since 2010 approximately 8% of the Haitian population has had cholera and thousands have died from the disease.</p>
<p>The UN, however, relying on its immunity, has not even deigned to appear in the court, which has not yet ruled on the matter. It has also refused to accept any responsibility for the Haitian cholera outbreak, despite overwhelming evidence that the outbreak was caused by the arrival of the UN mission.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/127701/original/image-20160622-19777-1r70b1k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/127701/original/image-20160622-19777-1r70b1k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/127701/original/image-20160622-19777-1r70b1k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/127701/original/image-20160622-19777-1r70b1k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/127701/original/image-20160622-19777-1r70b1k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/127701/original/image-20160622-19777-1r70b1k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/127701/original/image-20160622-19777-1r70b1k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A woman infected with cholera receives treatment in Port-au-Prince, Haiti, in 2010.</span>
<span class="attribution"><span class="source">Reuters/Keith Bedford</span></span>
</figcaption>
</figure>
<p>Second, it has recently been reported that the number of claims of <a href="http://www.ibtimes.co.uk/un-peacekeeping-allegations-sexual-exploitation-abuse-20-year-history-shame-1547581">sexual abuse</a> of women and children brought against UN peacekeepers last year increased by 25% over 2014. This should not surprise the UN because for many years it has been slow to deal with <a href="https://theconversation.com/why-the-un-isnt-winning-its-battle-against-sexual-abuse-by-peacekeepers-52866">such allegations</a>.</p>
<p>In fact, despite a recent <a href="http://www.un.org/apps/news/story.asp?NewsID=53430#.V2f5trh97IV">Security Council resolution</a>, it is not clear that those responsible will be held accountable. This situation, in effect, encourages UN peacekeepers to feel that they can act with impunity. This impression has possibly been reinforced by the fact that in 2010 the UN relied on its immunity to block a UN staff member from suing the organisation for the unfair way in which she was treated after she complained about being <a href="http://law.justia.com/cases/federal/appellate-courts/ca2/08-2799/08-2799-cv_opn-2011-03-27.html">sexually harassed</a> by the head of her UN agency. The allegation was subsequently substantiated by his forced resignation.</p>
<h2>Making the UN walk the talk</h2>
<p>The UN and its agencies can solve the problem created by their reliance on their immunity to avoid their responsibilities. They must establish a reasonable alternative to a court, such as an independent tribunal, to hear the claims of those who allege they have been harmed by their actions.</p>
<p>They should empower the tribunal, when applicable, to award appropriate relief. This action would be consistent with their responsibilities to respect human rights and to comply with international law.</p>
<p>An independent tribunal would achieve two objectives:</p>
<ul>
<li><p>provide the remedies that those harmed by the actions of international organisations like the UN are entitled to; and </p></li>
<li><p>protect the limited functional immunity that the organisations need to perform their mandates. </p></li>
</ul>
<p>Setting up a tribunal would not be unprecedented. Many international organisations, including the UN, already have <a href="http://untreaty.un.org/UNAT/main_page.htm">administrative tribunals</a> to deal with <a href="http://untreaty.un.org/UNAT/UNAT_Judgements/Judgements_E/UNAT_01495_E.pdf">employment cases</a>.</p>
<p>Likewise, multilateral development banks have <a href="http://www.worldbank.org/inspectionpanel">independent mechanisms</a> that can investigate the claims of people who allege they have been harmed by the failure of the banks to comply with their operational policies and procedures.</p>
<p>The UN and its agencies can build on these precedents. They can offer those they are alleged to have harmed a chance to have their claims adjudicated in a fair hearing before an independent decision-maker. If they do not, the courts in UN member states should follow the example of <a href="http://hudoc.echr.coe.int/eng?i=001-58912&sa=U&ei=9GFQU_Y2kPvSBZHzgPAP&ved=0CCYQFjAC&usg=AFQjCNEr0RkRxgik5wAjypvFSjrwYD7exA#%7B%22itemid%22:%5B%22001-58912%22%5D%7D">a number of European courts</a>, and strip them of their immunity in appropriate cases.</p>
<p>Establishing this new tribunal should be a priority for the new UN Secretary-General when he or she takes office in 2017.</p><img src="https://counter.theconversation.com/content/61227/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danny Bradlow receives funding from the National Research Foundation</span></em></p>The ‘functional immunity’ granted to UN officials made good sense when the body was founded after World War II. But as its organisational functions have expanded, so has this immunity.Danny Bradlow, SARCHI Professor of International Development Law and African Economic Relations, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.