GAONE SEKALE 201502629
USING THE CASE OF GRACE MUGABE ASSAULTING A SOUTH AFRICAN MODEL,DISCUSS THE RELEVANCE OF DIPLOMATIC IMMUNITY IN RELATION TO JUSTICE AN /OR REDRESS FOR THEIR VICTIMS.
TABLE OF CONTENTS
2.1 Diplomatic immunity………………..2-3
2.2 Waiver of immunity …………………………..3
Privileges of diplomatic immunity…………………3
Abuses of diplomatic immunity…………………4
Grace Mugabe diplomatic immunity case…………………………4-5
Justice for victims of diplomatic immunity…………………………..5-6
Diplomatic immunity and redress for victim using Grace Mugabe case………………6-7
Essays view on diplomatic immunity and redress for victims………………………7
TOC o “1-3” h z u
Based on the recent incident between Grace Mugabe and a South African model Gabriella Engels, this essays seeks to discuss the issue of diplomatic immunity in terms of there been justice or redress for its victims inflicted by diplomats. The essay will firstly define the concept or idea of diplomatic immunity, furthermore it will discuss the privileges enjoyed by diplomats and also the abuses of diplomatic immunity and how diplomats tend to get away with crimes all in the name of having “diplomatic immunity”, furthermore the question of whether there is justice for victims will be touched on. The case of Grace Mugabe will be briefly discussed and used to further explain this international law concept and issue of diplomatic immunity. Furthermore diplomatic immunity in relation to redress of the victims will be discussed as an expansion to the case of Grace Mugabe. Lastly the essay will give its stand on diplomatic immunity.
Dating further back than 1961, diplomatic immunity is codified under the Vienna Convention on Diplomatic Relations and is defined as a situation in which the members of diplomatic missions are shielded from legal process. CITATION Wil84 l 1033 (Wilson, 1984) Furthermore according to Wilson the ‘shield’-diplomatic immunity is broadly defined as the “freedom from local jurisdiction accorded under international law by the receiving state to diplomats as well as the families of the one in office”.
The 1961 Vienna Convention, provides that diplomats as well as their families are granted immunity from criminal and civil proceedings in the receiving state. The immunity can be waived by the home state of the diplomatic mission, this however is up to the home state.
Diplomatic immunity is on the oldest form of international law. By the end of the seventeenth century diplomatic immunity was well established, evolving out of principles of equality of states of immunity and immunity of the sovereign, whom were said to embody the state. CITATION Vat58 l 1033 (Vattel, 1758). Diplomatic immunity can be divided into two distinct parts; firstly there is immunity from jurisdiction where the diplomats are immune from civil and criminal jurisdiction. The second type is immunity from execution in which personal assets of the diplomat are immune from enforcement measurements. CITATION MGo l 1033 (Gogna, Hlobil, & Podsiedlik).The purpose of the diplomatic immunities and privileges is not about the individual benefitting from this concept of diplomatic immunity, but rather it’s to ensure the efficient performance of the functions of diplomatic missions as representing states CITATION Den08 l 1033 (Denza, 2008)Immunity can be divided into the functional immunity, which relates to the conducts carried out on behalf of the state. This immunity is based on the notion of the state not being able to sit in a judgment of policies and actions of another state as they are sovereign and equal CITATION Cry07 l 1033 (Cryer, 2007) . With functional immunity the immunity still subsides even after the term in office ends. The second form of immunity is known as immunity rationae personae or personal immunity important representative functions CITATION Aka04 l 1033 (Akande, 2004) . With personal immunity it ends at the end of the diplomat’s term in office and also applies to the members of the diplomat. In summary of the two forms of immunities the functional in contrast to rationae personae immunity, the personae is absolute in covering both the private and personal acts committed by officials, however it is temporary. It applies insofar as the person remains in office, the functional however continues even when out of office.
Waiver of immunity
Dictionary.University, defines the waiver of immunity as a means by which the witness relinquishes the right against self-incrimination, thereby making it possible for his or her testimony to be used against him or her future proceedings. The Law Dictionary defines the waiver of immunity as the ‘relinquishment by a witness to their right to refuse giving any evidence which may incriminate them. A waiver of the fifth Amendment.’
Privileges of immunity
There is often a mismatch in the context thereof diplomatic immunity and the privileges enjoyed by the diplomats. There are however a number of those privileges this essay will attempt discussing. Firstly, diplomatic immunity prohibits a search of diplomatic premise by the legal authorities of the host country. It also focuses on any forcible attempts of legal authorities of interrogation of an individual under the umbrella of the said immunity. Secondly diplomats are exempted from prosecution for petty crimes such as breaking a speed limit or theft. Lastly the officials under diplomatic immunity are completely exempted from tax procedures which include investments, services and other issues which may come under the realm of government taxation. CITATION Dee18 l 1033 (Deep, 2013)Abuses of diplomatic immunity
Article 41 of the Vienna Convention makes it clear that although diplomats are granted immunity from jurisdiction of the receiving state. Diplomats are obliged to respect the laws and stated regulations CITATION EJP10 l 1033 (Pierrot, October 2010). However despite the laws stated under Article 41, there are no enforcement provisions which compel the diplomats to comply with the laws. The no compliance makes the laws meaninglessCITATION Mit89 l 1033 (Ross, 1989). Evidence of diplomats breaking local laws, issues of extreme concern whereby diplomats or family are alleged to have committed grave offences which include the likes of murder and inflicting inhumane treatment are one such ways to show the meaningless of the Convention law in relation to Diplomatic immunity as the crimes go unpunished. An example of such a case is that of Floyd Karamba, who was a representative of Zimbabwe to the United Nations. Karamba was deported on charges of child abuse, however because of diplomatic immunity the issue was no taken to court and he was not charged for his crime CITATION Uhl88 l 1033 (Uhlig, 1 January 1988).
Furthermore there have been cases of slavery whereby victims were forced to work without compensation, ultimately this meant there was a violation of both their human rights and dignity. This particular issue was discussed under the Parliamentary Assembly of the Council of Europe which stated ‘that a considerable number of the victims worked for diplomats or international civil servants who under the 1961 Vienna Convention enjoyed diplomatic immunity CITATION Str01 l 1033 (Strasbourg, 2001)A percentage of 6.9 of the domestic workers in diplomatic households of the UK were found to have been victims of human trafficking for domestic work. This was found by the Kalayaan which is a British charity campaigning for the rights of domestic workers CITATION Kal10 l 1033 (Kalayaan, 4 June 2010) . However because of diplomatic immunity it was not easy to take the diplomats to court on charges of infringing the rights and dignity of those they unfairly employed.
Grace Mugabe case
The former Zimbabwean first Lady Grace Mugabe is one such case regarding diplomatic immunity, whereby she was granted immunity on the basis of being the spouse of then President Robert Mugabe. The case of Mugabe was in relation to an assault of a South African model Gabriella Engels whom she found in the rented residents of the Mugabe sons. Engels had charged the former first lady of Zimbabwe for having viciously attacked her with an extension cord, however because of the notion of diplomatic immunity having been applied to the family of those in office the case fell through. After assaulting Engels the South African minister of foreign affairs announced that Mugabe had been granted immunity and subsequently returned to Zimbabwe. Failure by the South Africa having granted Mugabe immunity would have to the ill treatment of South African diplomats in Zimbabwe.
There however recently has been issues in terms of the immunity granted to Grace Mugabe having been unconstitutional and inconsistent with the South African constitution. At the time of her alleged crime, Grace Mugabe was on a private visit and not official to South Africa. The basis on which she was granted immunity were questionable, furthermore an argument was made by the Democratic Alliance advocate whereby they argued that the day Robert Mugabe ceased office should automatically have meant the same for the diplomatic immunity case of his wife Grace Mugabe. Grace Mugabe was granted spousal immunity on the basis of her husband being in office, however now that he is no longer in office the case against her should proceed CITATION Ama18 l 1033 (Khoza, 10 May 2018)The basis on which Grace Mugabe further leads to the question in terms of whether or not the issue of diplomatic immunity, takes into regard justice or redress in the case of the victim of the violent crime. This will also mean there is dire need for review of diplomatic immunity.
Justice for victims of diplomatic immunity
Seen as the shield against crimes and civil obligations. The abuse there of diplomatic can be said to lead to impunity. If a person who enjoys diplomatic doesn’t have their immunity waived, the host country has the right to declare the person to be persona non grata CITATION Kem17 l 1033 (Kemp, 2017). Of which they would be expected to leave the country, this however would also mean no justice for the victim of abuse or crime. It however is of importance to keep in mind that this immunity will be granted initially to a diplomat does not attach to the persons personal capacity. It is granted on the basis of official capacity.
A person who possesses diplomatic immunity but no longer enjoys it will face justice in the future, this will be in cases where they find themselves back in the country the crime took place. Crimes such as assault are not associated with issues of official business between two sovereign states which raises questions as to why immunity would be granted. This question of immunity being granted however does not men justice for victims, as diplomatic immunity conferred on visiting envoys and representatives means immunity from prosecution and civil action. This will cause more frustration for the victims in their quest for justice in the courts. It however is important to take into account that justice for victims is possible taking into account the rules governing crime. The underlying rationale of diplomatic immunity is to facilitate official and commercial relations between sovereign states, it can be argued diplomatic immunity is not the impenetrable shield of impunity it is said to be. CITATION Kem17 l 1033 (Kemp, 2017)Assessing diplomatic immunity and redress for its victims (Grace Mugabe case)
Grace Mugabe was neither visiting South Africa as the head of state or a diplomat representing her country-both these reasons would have been the basis on which she would have been granted diplomatic immunity. The fact that she is an important person was not enough basis to grant her immunity, this is to say immunity is only granted on the nature of the visit and not status. CITATION Kem17 l 1033 (Kemp, 2017) In the Grace Mugabe case her diplomatic immunity would apply insofar as her husband and former President of Zimbabwe Robert Mugabe held office, meaning she would receive spousal immunity. She would qualify for personal immunity which covered both the official and their family (in this case being Robert Mugabe and his family). With immunity it means that Mugabe would not be prosecuted for any criminal acts she performed no matter the intensity. The immunity granted to Grace Mugabe would mean that any attempts made by Gabriella Engels to prosecute Mugabe would be meaningless or rather unsuccessful insofar or as her husband remained the president of Zimbabwe. If Engels did lay a charge against Grace Mugabe, it would only be considered by the courts once Robert Mugabe is out of office. Since the end of Robert Mugabe’s removal in office in 2018 reports have come out in which the Engels vs Mugabe case has been put back into motion as she no longer benefits from immunity, South African law officials are waiting for Mugabe to come back to South Africa to carry out a warrant of her arrest as her immunity is no longer available. This is event to the removal of her husband from the presidential seat.
Diplomatic immunity prevents the victims of crimes and civil wrongs from being able to seek reparation from the abuse they suffered. Despite there been reports for crimes committed by the diplomats it has been apparent that there is nothing the victims can do to gain justice in cases where diplomatic immunity will be raised as a defense for the diplomat. The only hope the victims have is for the home state to waive immunity. For instant after having assaulted Engels, Grace Mugabe instantly went on to announce that she had diplomatic immunity as a way to avoid being jailed. The actions of the former first lady are on way to show how easy it was for diplomats to do what they want, as they know that they would be excused from the crimes and not be prosecuted that is as long they are in office (personal matter), or they shan’t be prosecuted more especially in cases that were considered to be done on behalf of the state.
Diplomatic immunity is a special power often misused by the holders. Then again it is an absolutely necessary measure in international political issues which play the vital role in enhancing the international relationship between the sovereign nations. CITATION Dee18 l 1033 (Deep, 2013). Furthermore diplomatic immunity is also necessary to ensure the smooth delivery of duties of the diplomats. It also grants the diplomats impunity from coercion, unjust pressure and marginalization by the host country CITATION Dee18 l 1033 (Deep, 2013).
Essay stand on diplomatic immunity
This essay is of the idea that laws of diplomatic immunity should be altered and only be inclusive to the diplomats. The idea of diplomatic immunity applying to both the victims and their family means there is a higher chance of there been abuse. It sets out to lead to diplomat’s family more especially to commit crimes in sovereign counties and turn to having diplomatic immunity as a way to escape prosecution. This has been evident in the Grace Mugabe case whereby despite having been in South Africa for unofficial business she played the immunity card to escape prosecution and going to court.
Furthermore this essay believes that the idea of diplomatic immunity is an infringement upon the human rights of those who suffer abuse by diplomats as they are unable to prosecute those who inflicted them with abuse. However the essay does also agree to the terms of diplomatic immunity in terms of it been necessary as it allows the diplomats to be able to carry out their duties smoothly.
Diplomatic immunity seems to have been formulated to some extent to protect the diplomats of foreign states from any abuse of power by the host state. However, it has also become evident that there is abuse from the diplomats, whom misuse this concept of immunity. From what this essay has found out the diplomats perform acts of crime purposely knowing they can declare having immunity and be deported back to their home countries and ultimately dodging prosecution. The essay was able to define diplomatic immunity and the waiver of immunity, the essay was also able to discuss the privileges and immunities given to diplomats, the abuses of diplomatic immunity, whether there is justice for victims and the Grace Mugabe case were also discussed as a way to further elaborate on the issue of redress to victims. Furthermore the case of Mugabe was used to look more into the issue of whether there is redress to the victims of abuse in the hands of diplomats. Lastly the essay attempted in giving its own opinion on the issue.
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