Pt2: Response to Ace Kindred Cheong: "(diplomat) he or she can be detained to help investigate instead of allowing hm or her to leave"

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Ace Kindred Cheong, Updated 07:01 PM May 16, 2010 Thank you B.C for your comments.I appreciate your kindness in your explaination. By the way,i am a man not a woman so i hope you will address me as Mr and not Ms in future. I like to say that when I wrote what happen when any diplomat decided to become or involved in acts of terrorism (Not state sponsored terrorism) but personal reason or murder (again not state sponsored murder or assassination ), will he or she as a diplomat be protected by immunity. I do not know if such incidents or crimes committed ( not sponsored by the state or governments ) will have the same result? Please advise.Thanks

Hi Mr Cheong, my apologies for the 'title prefix' mistake.

Whilst I'd not rather declare myself an expert in all such matters, just concerned, I will agree with you from my own readings, that diplomats are indeed held with high esteem, perhaps for good reason as they ought to serve the high and lofty ambitions such as article 3.1a, g: "representing the sending State in the receiving State", "promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations", respectively.

I believe however, that like original 'holy matrimony' which indeed agonizes ill-prepared/ suited individuals, likewise the 'unadulterated' application VCDR, in its undiluted original form isn't for the 'fainthearted'- it should be therefore be only applied premised upon already good relations OR a mutually pronounced commitment towards achieving good relations. For those 'ill-prepared' for a marriage of such intensity, then abridged versions akin to 'engagement', 'cohabitation' or more preliminary proxies of such relations are perhaps better advised. (pls see Israeli policy on diplomatic bags checks for an example of some 'exceptions': "Most important are the reservation by most Arab nations concerning the immunity of diplomatic bags and non-recognition of Israel")

In regard to your question about "not state sponsored" crimes, which I believe the Ionescu case is similarly categorized, then I would conclude A31.4 to be the most efficacious and equitable means for resolution, not forgetting the preferably good relations between the 2 sovereigns to start with- that is in so far as the said 'sending state' displays preference towards
discipline of the said diplomat in accordance to A31.4, to which it should rightfully be given allowance for.
But if by unfortunate circumstance a failure of negotiations result, with the receiving state remaining ill satisfied with the extent to which justice has been served in accordance to A31.4, then the receiving state may choose, by application, the express waiver of the sending state via: A32.1 and .2: "The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. Waiver must always be express".

Should both A31.4 and A32.1-2 both fail, then the least 'diplomatic' possibility would be to apply A39.2 only after having satisfied the requirements of:
- A9.1: "The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. "

A39.2 which states: "When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so,..."

And as U see, A39.2 is a rather antagonistic article to use, one for which I question the purpose how such 'diplomatic-relations' could have really existed at all in the first place.

Hope this helps, just my 2c.

Rgds
B.C.

Ref:
- Diplomatic immunity[wiki]: 'Exceptions to the Vienna Convention': "Most important are the reservation by most Arab nations concerning the immunity of diplomatic bags and non-recognition of Israel"Quotes and references:

The following are appended articles of the 'Vienna Convention on Diplomatic Relations'
- Article 2 states: "The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent".
- Article 9.1 states:- "The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. .."
- Article 29 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."
- A31.1 states: "A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. ..."
- A31.4 states: "The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State."