After Jamal Khashoggi’s death we need to re-assess diplomatic immunity
In 1961 the Vienna Convention on Diplomatic Relations was adopted by the United Nations Conference on Diplomatic Intercourse and Immunities. It was followed in 1963 by the Vienna Convention on Consular relations, These treaties have, as of this month, been ratified by 192 and 179 states respectively.
In summary, these treaties create an environment of certainty that allows for international discourse to be maintained throughout the world, and protects both sending states and receiving states in relation to domestic actions which could impinge upon their ability to maintain diplomatic relations.
These protections exist to prevent the punitive or arbitrary arrest and detention of diplomats and their families, and protects embassy and consular grounds from invasion by the states in which they are located. They even go so far as to lay out the protections that are to exist for these parties in a time of war between states.
These immunities and protections are important, and should not be treated lightly. But this month, with the murder on overseas consular property of Saudi Arabian national (and United States resident) Jamal Khashoggi, they have been brought into sharp focus.
In drafting the treaties, it is hard to imagine that the International Law Commission envisaged a time where citizens would require protection from their own nation on their own consular property.
Indeed, article 41 of the diplomatic convention goes so far as to say that “it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.” Article 41 further states that these premises should not be used in contravention to the functions of the mission as laid down by international law.
This is far from the first time that Saudi Arabia has acted with scant regard for the privileges of diplomatic immunity; in 2015 a Saudi diplomat in India who was accused of raping domestic staff in his residence left the country under immunity from prosecution.
In 2017, domestic staff in London who claimed they were exploited by their Saudi Arabian diplomat employer won a landmark case at the Supreme Court, which ruled that their employer was no longer covered by immunity.
Although these cases attracted less attention that the murder of Khashoggi, they do speak to an ongoing disregard for international norms of behaviour by agents of the Saudi Arabian government overseas. What makes this so galling to the international community is the faith they put in the story that Crown Prince Mohammed Bin Salman – MBS for short – was a true reformer who was going to herald a new era of Saudi modernisation.
Saudi Arabia has yet to seek immunity for the 18 people implicated in this murder, and indeed they are all currently in Saudi Arabia, so extradition for domestic prosecution in Turkey seems far-fetched.
The fact that the Kingdom of Saudi Arabia appears to all intents and purposes to have violated the spirit – and quite possibly the letter – of international law, begs the question of whether it is time to look again at these rights and privileges.
States which act with such flagrant disregard for the international laws and conventions which govern civilised discourse between nations are rightly to be condemned by the international community.
But if we do not use this appalling abuse of diplomatic protections to guarantee the longevity of the laws governing the world’s diplomatic community, we open the door to hostile states acting with disregard for international norms right across the globe, whether their national leaders are so-called reformers or not.