Diplomatic Immunity and why it exists
BY Miquelaa Fernando
The recent controversy surrounding the Swiss embassy staffer here in Sri Lanka has brought to the limelight diplomatic immunity and what it entails. What privileges are they entitled to and why do they need them? Diplomatic immunity has roots in the logic of “don’t shoot the messenger”. The formal definition stated that diplomatic immunity is a form of legal immunity that ensures that diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country’s laws. Though the boundaries of modern diplomacy lie within the Vienna Convention of 1961, the concept and customs of diplomatic immunity dates back thousands of years, such as to the time of Genghis Khan and the Mongols, who would often inflict terrible punishments on those who harmed their ambassadors.
History has however shown that there are those who have taken this privilege as a platform for darker deeds causing exceptions to the Vienna Convention and a division of opinions on the need for immunity for diplomats. Consulates, embassies and diplomatic immunity has sparked controversies time and time again, ranging from the disappearance of journalist Jamal Khashoggi to the case of Wikileaks founder Julian Assange and even the case in which an on-duty police officer Yvonne Fletcher was murdered in London in 1984, by a person shooting from inside the Libyan embassy during a protest causing a breakdown in diplomatic relations until Libya admitted “general responsibility” in 1999. In the past, country representatives were killed as tensions would flare between countries and war would erupt. Therefore, a combination of honor and sovereignty brought the reality of ambassadors being given protection in the form of diplomatic immunity. Violating these laws is condemned internationally and receive much attention.
Fast forwarding to Swiss embassy staffer Garnier Banister Francis, who claims that she had been abducted, sexually assaulted and threatened by her alleged assaulters to disclose embassy related information here in Sri Lanka. As the incident continues to escalate, a possible criminal charge of disaffection toward the government and also fabricated evidence in her abduction claim has led to her arrest. Being a locally employed recruit of the Swiss embassy, Garnier Banister Francis does not enjoy the privilege of diplomatic immunity, raising the question of the risks involved in hiring local staff in foriegn embassies for diplomatic services and the guidelines that should be followed.
The 1961 Vienna Convention on Diplomatic Relations also states that local police and security forces are not permitted to enter, unless they have the express permission of the ambassador, even though the embassy remains the territory of the host nation. Meanwhile, section 7 of the Diplomatic Privileges Act No. 9 of 1996 of Sri Lanka asserts that, “Any dispute on locally recruited staff should be settled in accordance to the domestic law enforcement.” Thus, Sri Lanka also rejected a request by the embassy to fly Francis and her family to Switzerland.
The Swiss authorities have been angered and called the incident a “very serious and unacceptable attack” and even summoned Sri Lanka’s ambassador to demand an investigation. Careless remarks by politicians have also aggravated the situation and brought closer scrutiny and criticism on Sri Lanka’s handling of the incident. After days of extensive interrogation, the government has insisted that evidence collected by its investigators did not support the sequence of events provided by the embassy. With age old values of honour, integrity and sovereignty on the line, Sri Lanka would need to tread with caution as the rules of diplomatic immunity complicates the incident.
