EXCEPTION TO CRIMINAL JURISDICTION – DIPLOMATIC IMMUNITY

Modern diplomatic immunity was codified as international law in the Vienna

Convention on Diplomatic Relations (1961) which governs the conduct of relations between
representative organs of a state operating within the territory of another state as well as the
receiving state. The sole purpose of this is to facilitate international diplomacy, balancing the
pursuit of the foreign policy interests of the sending state with respect of the territorial
sovereignty of the receiving state1. Diplomatic immunity is given to the foreign diplomats in is
an exception to the general rule of territorial jurisdiction that provides them with a degree of
protection from criminal prosecution. The underlying concept is that diplomats can carry out
their duties as well as their functions within the framework effectively because they require
special rights and assurances from a certain degree of insulation from the application of law
enforcement practices of the host country. Always keep in mind that their privileges and
immunities are extended the moment a diplomat crosses the border of the host country until
the diplomat leaves the country to perform their duties effectively.

The diplomatic agent or known as ambassadors are generally high-ranking embassy

officials enjoy the highest degree of immunity and it applies to their family members as well
are given an absolute criminal immunity. They enjoy personal inviolability, which means that
they may not be handcuffed, except when that individual poses an immediate threat to safety,
arrested, or detained and either vehicles or residences may be entered or searched. They are
also under no obligation to provide evidence as witnesses and cannot be required to testify
even, for instance, if they have been the victim of a crime. After all, it is downright clear that
they cannot be tried or prosecuted regardless how serious the offense unless their immunity is
waived by the sending state. Family members of diplomatic agents enjoy precisely the same
privileges and immunities as well. Today, it is generally accepted that criminal immunity is
valid for all actions and that territorial state cannot an action against a diplomatic representative
before the court, but only can put in a plea for the diplomat to be subjected to punishment in
the country of origin2.

1
Brown, Jonathan. "Diplomatic immunity: State practice under the Vienna convention on diplomatic
relations." International & Comparative Law Quarterly 37, no. 1 (1988): 53-88.
2
Ross, Mitchell S. "Rethinking diplomatic immunity: A review of remedial approaches to address the abuses of
diplomatic privileges and immunities." Am. UJ Intl'l L. & Pol'y 4 (1989): 173.
 In regards of diplomatic immunity, it can be illustrated in the case of The Queen v
Muhammad Rizalman bin Ismail3 concerning a Malaysian diplomat at Wellington embassy,
who were arrested and charged with burglary by entering and remaining in Ms Tania
Billingsley’s home and assault with intent to rape in New Zealand after allegedly following to
her home. The case caused outrage when he was charged over the incident but he flew back
home to Malaysia after serving his nine-month house arrest citing diplomatic immunity. The
government of Malaysia has asserted diplomatic immunity to protect Rizalman, but this case
has been highly criticized due to the acts committed by him unconnected with his diplomatic
role.

To conclude that, diplomats’ roles in negotiating, in representing their government and

as cultural liaisons are still extremely important to the conduct of international relations4.
Therefore, it is downright important for the diplomats to perform their work without
interference by granting them protection to their lives and properties in individual cases or
collectively but it is not a licence for them to break the law and evading justice.

3
[2015] NZHC 321
4
Higgins, Rosalyn. "The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience."
American Journal of International Law 79, no. 3 (1985): 641-651.
REFERENCES

1. Higgins, Rosalyn. "The Abuse of Diplomatic Privileges and Immunities: Recent United
Kingdom Experience." American Journal of International Law 79, no. 3 (1985): 641-
651.
2. Ross, Mitchell S. "Rethinking diplomatic immunity: A review of remedial approaches
to address the abuses of diplomatic privileges and immunities." Am. UJ Intl'l L. & Pol'y
4 (1989): 173.
3. Brown, Jonathan. "Diplomatic immunity: State practice under the Vienna convention
on diplomatic relations." International & Comparative Law Quarterly 37, no. 1 (1988):
53-88.
4. The Queen v. Muhammad Rizalman bin Ismail [2015] NZHC 321