Storm over diplomat in sex scam

OPINION: By Lawrence Mwagwabi

I read someone’s Facebook status which read “Diplomatic Immunity My Foot!”  and a blog article link appropriately linked to it that prompted me to make certain specific clarifications that would enlighten those who may have been struck by this article. 

The blog article which was a story reported local daily, on a sub heading entitled, Venezuelan Diplomat Accused of Abuse, mentions a staff member of the Venezuelan Embassy filed a complaint with the Diplomatic Police Unit over an allegation of sexual impropriety by an ambassador Gerardo Carrillo Silva.

The report went on to say that three junior employees working at Silva’s home in Runda have complained over sexual harassment. Furthermore, staff of the embassy further claimed that the diplomat had acted indecently towards them on diverse dates and some had been forced to quit their employment after being unable to bear the offending overtures.

For instance, a watchman from a private security company who had been guarding the diplomat’s residence was forced to quit because of the indecent acts towards him committed on diverse dates. The driver also alleged that he had fallen prey to the ambassador’s overtures.

A long serving cook was surprised to see the diplomat stark naked in the kitchen on December 8, last year.  His driver told the police that the diplomat had attempted to grab him sexually in December but he managed to get away. This list goes on and on though some staff at the embassy could not substantiate these claims.

I guess the disgust to the Venezuelan diplomat was prompted by the fact that as an ambassador, Silva enjoys privileges and immunities that are both functional and personal by virtue of the fact that he exercises the duties of a diplomatic agent and in this case, duties of an ambassador.

It is important to note that the rules regulating the conduct of diplomatic agents are codified under two conventions: Vienna Convention on Diplomatic Relations (1961) and Vienna Convention on Consular Relations (1963). If one examines the whole area of diplomatic relations, relations between states have traditionally been conducted through ambassadors and staff in a diplomatic mission. Indeed, the growth of trade and commercial “intercourse” resulted in the establishment of the office consul.

The field of diplomatic immunities is considered one of the most accepted and uncontroversial of international law discourse, as it is in the interest of all states to ultimately preserve diplomatic relations, although not all states act in accordance with this (examples can be drawn from US Diplomatic and Consular Staff in the Tehran case (and recently the incident involving demonstrators and invasion of the US and French embassies in Syria).  

The person of a diplomatic agent is inviolable (uninfringeable) under article 29 of the Vienna Convention on Diplomatic Relations and he or she may not be detained or arrested. Indeed, this principle is the most fundamental rule of diplomatic law and is the oldest rule of diplomatic law. States recognize that the protection of diplomats is a mutual interest founded on functional requirements and reciprocity.

Thus, receiving states (where diplomatic agents are sent to perform their functions as diplomats) are under an obligation to ‘take all necessary steps’ to prevent any attack on the person, freedom or dignity of diplomatic agents.

There are regulations in Diplomatic Law that prevent crimes committed against diplomats and itinerant punishment that should be meted out in event that this occurs. The United Nation Convention on the Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents was adopted in 1973.

This convention provides that state parties must make attacks upon such persons a crime in domestic law with appropriate penalties and take such measures as may be necessary to establish jurisdiction over these crimes. State parties are obligated to extradite or prosecute offenders.

With regards to criminal jurisdiction, diplomatic agents enjoy complete immunity from the legal system (or domestic laws) of the receiving state (the state where the diplomatic agents serve their tour of duty), although there is no immunity from the jurisdiction of the sending state (the home state that has sent them to the receiving state).

The provision noted in article 31 (1) of the Vienna Convention on Diplomatic Relations reflects the accepted position under customary law (it is important to mention here that the Vienna Convention on Diplomatic Relations is a codification of practice of states that became accepted norms in international relations. Indeed, customary international law – or CIL – is the historical acceptance of certain long standing practice by states as legally required.

This has been recognized by the Statute of International Court of Justice as a primary source of international law!). The only remedy provided to the host state has in the face of offences alleged to have been committed by a diplomat is to declare him or her persona non grata under article 9 of the Vienna Convention on Diplomatic Relations.

Under article 31 (1) of the Vienna Convention on Diplomatic Relations diplomatic agents are immune from civil and administrative jurisdiction of the state in which they are serving except in three cases: where the action relates to private immovable property situated within the host state (unless for mission – embassy- purposes); in litigation relating to succession matters in which the diplomat is involved as a private person (for instance as an executor or heir); and, with respect to unofficial professional or commercial activity engaged in by the diplomatic agent.

In addition, article 31 (2) of the Vienna Convention on Diplomatic Relations provides that a diplomatic agent cannot be obliged to give evidence as a witness, while article 31 (3) of the same convention provides that no measures of execution may be taken against such a person except in the three cases mentioned under article 31 (1) a, b, and c and provided that the measures concerned can be taken without infringing on the inviolability of his/her person or of his/her residence.

Article 39 (2) of the Vienna Convention on Diplomatic Relations provides that immunities and privileges of a diplomatic agent normally cease when the diplomatic agent leaves the country or upon expiry of a reasonable period in which to do so. However, by this article there would be continuing immunity with regards to those acts that were performed in the exercise of his/her functions as a member of the mission.

It therefore follows from this formulation that immunity would not continue for a diplomatic agent leaving the host country for any act which was performed outside the exercise of his/her functions as a member of a diplomatic mission even though he/she was immune from prosecution at the time. For instance, in the Former Syrian Ambassador to the German Democratic Republic (GDR), the German Federal Constitutional Court held that article 39 (2) of the Vienna Convention on Diplomatic Relations covered the situation where the ambassador in question was accused of complicity in murder by allowing explosives to be transferred from his embassy to a terrorist group. He was held to have acted in the exercise of his official functions.

It was argued that diplomatic immunity from criminal proceedings knew of no exception for particularly serious crimes, the only resort being to declare him persona non grata. The Court, in perhaps a controversial statement, noted that article 39 (2) was not binding on the receiving (host) state, was not binding on third states. Accordingly, the continuing immunity of the former ambassador to the German Democratic Republic under article 39 (2) of the convention was not binding upon the Federal Republic of Germany.

Article 32 of the Vienna Convention on Diplomatic Relations (1961) provides conditions for waiver of immunity of a diplomatic agent. The sending state may waive the immunity from the jurisdiction of diplomatic agents and others possessing the immunity under the Convention. “Such waivers must be express” - see article 32 (2). Where a diplomatic agent who enjoys immunity initiates proceedings, they cannot claim immunity in respect of any counter-claim directly connected with the principal (main) claim.

Waiver of immunity from jurisdiction in respect to civil or administrative proceedings is not to be taken to imply waiver from immunity in respect to the execution of the judgement, for which a separate waiver is necessary. In general, waiver of immunity has been rare or unusual. While waiver of immunity in the face of criminal charges is not common, ‘it is routinely sought and occasionally granted’. However, Zambia hastily waived the immunity of an official at its London embassy suspected of drugs offences in 1985.

Going back to the issue that prompted my writing this piece, there are only three remedies that can be sought on this matter: Venezuela can end the tour of duty of the ambassador and deal with this matter within its jurisdiction; Venezuela can waive the ambassadors immunities so that he can be prosecuted in our courts – but this would be rare and in any case the other diplomatic agents affected by this matter cannot be witnesses in Kenyan court proceedings on the crime the ambassador is alleged to have committed in Runda; and lastly, Kenya can declare the ambassador persona non grata.  

Venezuela could do what the Nigerian Ministry of Foreign Affairs did by recalling its ambassador, Dr. Chijioke Wilcox Wigwe on allegations of battering his wife in July 2011.