By Zeb Holmes and Ugur Nedim
The murder of journalist Jamal Khashoggi inside the Saudi Arabian embassy in Istanbul, Turkey has triggered debate about the potential for misuse of diplomatic immunity by governments and rogue diplomats.
The Khashoggi case
Mr Khashoggi was a Saudi Arabian national and Washington Post journalist known for being critical of the Saudi government, especially its ruling Prince Mohammed bin Salman.
Mr Khashoggi fled his home country last year to live in the United States.
While visiting Istanbul, he entered he entered the Saudi embassy to obtain papers necessary to marry his Turkish fiancee.
He did not leave the embassy alive.
Saudi Arabian officials first denied the murder, saying the journalist had left the embassy by a back exit.
They later claimed he died as a result of fight inside the embassy.
It was only as a result of releases of footage by the Turkish government that the Saudi government was forced to admit the journalist had been murdered that the killing was premeditated.
Turkish officials initially claimed to have recordings of Mr Khashoggi’s death but later retracted that claim.
Many believe the Turkish government indeed has the recordings, but has refrained from releasing it because foreign embassies fall within the jurisdiction of the foreign government, and ‘bugging’ them is therefore illegal.
The release of any such recordings could additionally create a diplomatic nightmare for the Turkish government (if it hasn’t already), as other countries would suspect their embassies are also being monitored.
Modern diplomatic immunity was codified in 1961 by the Vienna Convention on Diplomatic Relations.
The Convention has been ratified by Australia and many of its Articles have been brought into force by the Diplomatic Privileges and Immunities Act 1967 (Cth).
Section 7 of that Act is titled ‘Vienna Convention on Diplomatic Relations to have force of law. The section makes it clear that Articles 1, 22 to 24, and 27 to 40 have force throughout Australia.
Those Articles provide far-reaching immunity for diplomats, members of their families, their agents and their property against being monitored, searched, arrested, charged or prosecuted.
Article 29, for example, states:
‘The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.’
And among many of things, Article 29 provides that:
- The receiving State shall permit and protect free communication on the part of the mission for all official purposes…
- The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.
- The diplomatic bag shall not be opened or detained.
The immunity is strict and unlimited; it can extend from parking and traffic infringements all the way up murder.
In 1984, UK Metropolitan police officer Yvonne Fletcher was shot dead by an unknown person with a submachine gun from inside the Libyan embassy.
The shooting occurred during a protest against Muammar Gaddafi outside of the embassy. A number of protesters were injured in the shooting. There was no search an no charges have ever been laid.
In 1979, the former Burmese ambassador to Sri Lanka was alleged to have murdered his wife before burning her body in his backyard – in full view of spectators and police.
He was recalled to Burma but no charges have ever been laid.
And in 2014, a man employed at Malaysia’s High Commission in New Zealand invoked diplomatic immunity when facing charges of burglary and assault with intent to rape after allegedly following a 21-year-old woman to her home.
He returned to Malaysia in May 2014 with his family. However, his immunity was later revoked by Malaysia and he was sent to New Zealand to face trial.
Facilitating modern slavery
Rogue diplomats have used their immunity to ignore laws relating to minimum wages, maximum working hours.
There have even been reports of diplomats detaining employees in their homes, taking away their passports, depriving them of food and outside contact, and even abusing them physically and mentally.
In 1999, a Bangladeshi woman, Shamela Begum, reported being enslaved by a senior Bahraini envoy to the UN and his wife.
Ms Begum said the couple took her passport, detained her in their New York apartment, struck her and made her work around the clock for very little money.
Similar cases were recently reported in foreign embassies in Canberra.
Waiver of immunity
Article 32 makes clear that the sending nation can waive the right to diplomatic immunity.
Article 9 says a sending nation can – at any time and for any reason – declare a diplomat a ‘persona non grata’, effectively prohibiting them from remaining within the host country and forcing them to return within a reasonable time.
Such actions may be invoked for rogue diplomats who abuse their positions and/or where to do otherwise could cause a diplomatic rift between nations.