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Assault On Diplomats - What Diplomatic Law Says

| by Ruwantissa Abeyratne

Good government consists in the ruler being a ruler, the minister being a minister, the father being a father, and the son being a son.
- Analects of Confucius...Lunyu 12.11.

( October 7, 2014, Montreal, Sri Lanka Guardian) Confucius (551-479 BC), a philosopher who was both modest and unassuming, believed that the welfare of a country depended on the moral cultivation of its people, beginning from the nation's leadership. The Stanford Encyclopedia of Philosophy quotes Confucius as having believed that a moral imperative called for "rectifying the behaviour of people and the social reality so that they correspond to the language with which people identify themselves and describe their roles in society. Confucius believed that this sort of rectification had to begin at the very top of the government, because it was at the top that the discrepancy between names and actualities had originated".

The origins of diplomatic protection is as ancient as the history of international law. In 1758 the Swiss jurist Emmerich Vattel expounded the fundamental principle of diplomatic protection when he wrote that “Whoever ill-treats a citizen indirectly injures the State, which must protect that citizen”.

The person of a diplomatic agent is inviolable and is protected under Article 29 of the Vienna Convention on the law of Diplomatic Relations of 1961 which Sri Lanka has ratified . A diplomatic agent is defined in Article 1 e) of the Convention as the head of mission or the member of the diplomatic staff of the mission. Freedom from arrest and detention is the most fundamental right of a diplomatic agent under international law. This is manifest in Resolution 53/97 of 1999 of the United Nations General Assembly which strongly condemned acts of violence against diplomatic and consular missions and their representatives.

There are three types of diplomatic agents as stipulated in the Vienna Convention based on three types of assignment: embassy, consular, and international organization. The embassy is the primary diplomatic presence established by one country in another that it recognizes. The chief official of the embassy (or High Commission) is the ambassador (or High Commissioner), who serves as his country's official representative to the host country.

Diplomatic immunity is recognized by States as being a principle of mutual interest founded on reciprocity and the fact that the host State is under an obligation to take all appropriate steps to prevent any attack on the person, dignity or freedom of a diplomatic agent. The host State similarly depends on other States to honour its diplomats. The United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, adopted in 1973 - and which Sri Lanka ratified in 27 February 1991- makes it obligatory on States to make attacks against such persons a crime to be recognized as such in the domestic law of the States. Furthermore, States are required to prescribe punishment for such acts against internationally protected persons and diplomatic agents.

Recently, when a Dutch diplomat was assaulted in his home in Moscow by two men who had broken in, the Dutch authorities requested of the Russian authorities an explanation, and the latter authorities assured the Dutch authorities that they would investigate the matter and punish those responsible.

Interestingly, all the jurisprudence on the protection of diplomats is based on their protection from harm caused by foreign nationals. The case of a diplomat being assaulted by a fellow citizen and whether the diplomat has recourse to protection from his own State has not come up often, so far as the writer is aware. However, in Kaunda and Others v. President of the Republic of South Africa, The South African Constitutional Court held that: "There may be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human rights norms. A request to government for assistance in such circumstances where the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse. It is unlikely that such a request would ever be refused by government, but if it were, the decision would be justiciable and a court would order the government to take appropriate action".

In the 1941 US case of Hines v. Davidowitz, Mr. Justice Black commented as follows in delivering the opinion of the Court: "One of the most important and delicate of all international relationships, recognized immemorially as a responsibility of government, has to do with the protection of the just rights of a country's own nationals when those nationals are in another country". A contrary view is given by Nicholas T. Hooge who says: " Despite these weighty citations, the orthodox doctrine of diplomatic protection – what will be referred to here as the ‘traditional doctrine’ – holds that States are under no international legal obligation to provide their nationals with diplomatic protection when they are harmed in foreign countries and local remedies are ineffective".

The bottom line in a case where a national assaults another national of his country who is a diplomat, whatever the situs of the case may be, seems to rest on two popular legal norms. One is that diplomatic protection is a process and not a substantive human right, which makes it difficult if not impossible to assert one's claim to protection, and the other is that, based on the doctrine of State sovereignty, no one can interfere in the internal affairs of a State. Given this situation, the applicable principles of diplomatic law and jurisprudence would have to be supplemented by political leadership and Confucian moral turpitude.

A simplistic definition of leadership is that it is the art of motivating a group of people to act towards achieving a common goal. Put even more simply, a leader is the inspiration and director of the action. He or she is the person in the group that possesses the combination of personality and skills that makes others want to follow his or her direction. Peter Drucker, the Harvard management guru, defines a leader as “someone who has followers..." and goes on to say “to gain followers requires influence”. Warren Bennis is of the view that “leadership is a function of knowing yourself, having a vision that is well communicated, building trust among colleagues, and taking effective action to realize your own leadership potential. Kenneth Boulding says that “good leaders are made not born. If you have the desire and willpower, you can become an effective leader. Good leaders develop through a never ending process of self-study, education, training, and experience.”

Effective political leadership involves all the above elements. However, in addition, a political leader has, according to Prem Misir, to combine two behavioural styles – the first being empathy and concern relating to people, which includes respecting people and developing mutual trust. The second is concern with project-completion tasks. For the first goal to be achieved a leader must draw distinct lines between his followers in terms of their scope of employment and empowerment.

The author is a former official of the United Nations who held ex officio diplomatic status in Canada.
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