Legal Literacy - Diplomatic immunity is a type of legal immunity that ensures that a diplomat can serve safely and cannot be prosecuted or arrested by state officials in the place where he or she serves.

Diplomatic Immunity and the Vienna Convention

Based on Article 25 Vienna Convention The year 1961 on diplomatic relations provides arrangements regarding diplomatic immunity. Article 25 grants rights to diplomatic envoys in the receiving state, which rights are inviolable to guarantee the implementation of the diplomat's duties and responsibilities. Not only diplomats receive diplomatic immunity, but it also applies to the diplomat's family, property, buildings, communications and documentation. Article 29 states that diplomatic officials are inviolable and cannot be arrested or detained (Edy Suryono and Moenir Arisoendha, 1986).

The immunity for family members of diplomats is explained in Article 37 paragraph 1 of the 1961 Vienna Convention on diplomatic relations, which affirms that the rights of diplomats' families cannot be violated because family members of a diplomatic official are part of the household, privileges and diplomatic immunity can only be enjoyed if he or she is not a citizen of the receiving state. Basically, all countries accept the diplomat's husband/wife as a family member.

Case Examples of Diplomatic Immunity

Regarding the violation of the law committed by Anne Sacoolas, the wife of a US diplomat in England, who hit a young man, Harry Dunn, to death, it can be said that Anne Sacoolas has committed a violation of the law in the receiving state. Anne Sacoolas is the wife of a US diplomat, so she is included in the family members described in Article 37 and receives diplomatic immunity from all forms of legal action, including prosecution in the receiving state.

Anne Sacoolas' diplomatic immunity is reinforced by Article 39 paragraph (1), which states that everyone who is entitled to legal immunity and privileges will receive it from the moment he or she enters the territory of the receiving State in the process of taking up his or her post, or if he or she is already in its territory, from the moment his or her appointment is notified to the Ministry of Foreign Affairs or other ministry agreed upon. So it is true that Anne Sacoolas cannot be prosecuted and tried under English law.

The settlement of this problem by extradition with the UK requesting the United States to hand over Anne Sacoolas may not necessarily be possible, because the surrender or extradition based on the provisions of Article 3 letter e of the UN General Assembly Resolution No. 45/116 concerning the Model Treaty on Extradition Obligation to Extradite, that bilateral extradition agreements can only be applied to civilians or people who do not have diplomatic immunity, while Anne Sacoolas is protected by Article 37 concerning diplomatic immunity for diplomats' families.

The solution so that Anne Sacoolas can be held accountable is for the United States to revoke Anne Sacoolas' diplomatic immunity so that Anne Sacoolas' status changes to an ordinary United States citizen or civilian so that surrender or Extradition can be carried out so that she can be prosecuted and tried in the English Court. This is because the authority to revoke immunity from diplomatic agents and other people who have immunity under the convention is the Sending State as explained in Article 32 of the 1961 Vienna Convention (Windy Lasut, 2016).

If the United States does not want to revoke Anne Sacoolas' status to become a civilian for extradition to England, then the United States must make a firm statement that the United States itself will prosecute by notifying England through diplomatic channels. This is because according to Article 31 paragraph 4, the immunity of diplomatic officials from the jurisdiction of the receiving state does not exempt them from the jurisdiction of the sending state. So the United States still has the right to prosecute Anne Sacoolas.

In addition, the UK as the receiving state also has the right to request accountability from the sending state in the form of a formal apology to ensure that the act is not repeated (Lastri Timor Jaya & Putu Tuni Caka Bawa Landra, 2017).

In this case, diplomatic officials and their families do have immunity from the criminal jurisdiction of the receiving state, but it should be noted that diplomatic officials are obliged to always respect the laws of the receiving state as stated in the 1961 Vienna Convention in Article 41 paragraph 1 which states that without prejudice to the privileges and immunities of diplomatic officials and people who enjoy privileges and immunities are obliged to respect the laws and regulations of the receiving state. So for violations of the law, accountability must still be requested.

References

Lasut, Windy. 2016. Revocation of Immunity Diplomatic in the Receiving Country According to the Vienna Convention 1961. Jurnal Lex Crimen VolV, No.4
Lastri Timor Jaya & Putu Tuni Caka Bawa Landra. 2017. Responsibility of the Sending State for Abuse of Authority by Diplomatic Officials. Journal of International Law FH Unud
Suryono Edy, Moenir, Arisoendha. 1986. Diplomatic Law, Immunity and Privileges. Angkasa: Bandung

*This article is the personal opinion of the author and does not represent the views of the Indonesian Legal Literacy editorial team.