Max Planck Encyclopedia of Public International Law

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1 Immunities, Special Missions Nadia Kalb Table of Contents A. Notion B. Historical Development C. Applicable Rules 1. Convention on Special Missions 2. Judicial Decisions and State Practice D. Assessment Select Bibliography Select Documents A. Notion Max Planck Encyclopedia of Public International Law 1 In addition to permanent diplomatic missions and consular posts, special missions are often sent from one State to another with the latter s consent in order to perform a specific task for a limited period of time. By virtue of their official character representing their State ( Representatives of States in their International Relations), special missions benefit from facilities, privileges, and immunities accorded by international law ( State Immunity) for the purpose of conducting international relations. B. Historical Development 2 Ad hoc missions were, in fact, the first forms of diplomacy whose privileged status was considered to arise from international comity. During the 20 th century, increasing international cooperation and technological developments facilitating travel led to an increase in special or ad hoc missions, and the search for a legal basis for their privileges and immunities. Early codifications ( Codification and Progressive Development of International Law) granted the same status to permanent as well as to temporary accredited diplomatic agents (eg the 1928 Havana Convention regarding Diplomatic Officers), though this notion did not encompass ad hoc missions in the modern sense. C. Applicable Rules 1. Convention on Special Missions 3 In 1969, the UN General Assembly adopted the Convention on Special Missions, defining a special mission as a temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task. The status of special missions under the Convention is approximated to that of permanent missions under the Vienna Convention on Diplomatic Relations (1961) ( VCDR ) and, to a lesser extent, the Vienna Convention on Consular Relations (1963) ( VCCR ), following a functional approach. The Convention sets out the procedure for sending and conduct of special missions based on mutual consent; it deals with the facilities, privileges, and immunities of missions and their staff that are granted to ensure the effective performance of their functions, not for their personal benefit; it obliges members of special missions to respect the law of the receiving State; and also includes remedies of the receiving State in case of abuse. 4 With regard to the articles on privileges and immunities, the International Law Commission (ILC) stated that they reflect an already existing obligation, not mere courtesy (ILC Draft Articles on Special Missions with Commentaries 358). The Convention, however, failed to secure widespread support as of January 2011 it had 38 State Parties and its provisions approximating the status of special missions to that of permanent missions probably go too far and are not accepted as customary international law in all respects. Even among parties to the Convention, routine visits of official negotiators or experts are often not given the status of special missions since States are reluctant to accept that missions always need privileges and immunities as extensive as required by the Convention. Privileges and immunities for high-level special missions are, however, uncontroversial. Official missions abroad of heads of State, heads of government, and ministers of foreign affairs continue to enjoy immunity of their own rank determined by customary international law in addition to the privileges and immunities of special missions (Art. 21) Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 1

2 5 Some differences to diplomatic immunity under the VCDR ( Immunity, Diplomatic) are worth mentioning: although the premises of the special mission enjoy the same inviolability as permanent diplomatic missions (Art. 25; see also Art. 21 United Nations Convention on Jurisdictional Immunities of States and Their Property [2004]) and officials of the receiving State may not enter without consent of the head of the special mission, consent of the head of the permanent mission is also accepted ( Heads of Diplomatic Missions). Consent may be assumed in case of fire or other disaster requiring prompt protective action (see Art. 31 VCCR). Usually, the special mission will use the premises and facilities of the permanent diplomatic mission, which enjoys inviolability in any case. Special missions and their members enjoy tax and customs exemptions to the same extent as permanent diplomatic missions with limited exceptions due to their temporary nature (Art. 35). 6 The personal immunity of members of special missions from civil, criminal, and administrative jurisdiction is also more limited compared to diplomatic immunity since there is an additional exception for actions for damages arising out of an accident caused by a vehicle used outside the official functions (Art. 31). 7 Privileges and immunities are granted to members of special missions other than diplomatic staff to the same extent as in the VCDR (administrative and technical staff: Art. 36, members of service staff: Art. 37, and private staff: Art. 38), but family members enjoy such privileges and immunities only when they accompany members of the special mission (Art. 39). 8 Privileges and immunities normally end when the special mission has fulfilled its tasks, but continue to apply until its departure from the receiving State, even in the case of armed conflict (Arts 44 and 47). Special provisions are also made for third States or transit States, which must only then grant privileges and immunities to special missions if their consent has been obtained. 2. Judicial Decisions and State Practice 9 It is generally agreed that clear and comprehensive rules of customary international law on the immunity of temporary missions are lacking. But, since such missions consist of agents of States received with the consent of the host State, they benefit from the privileges based on State immunity and the express or implied conditions of their invitation. Therefore, States have accepted that special missions enjoy functional immunities, such as immunity for official acts and inviolability for official documents. Usually, customs facilities are granted upon production of a diplomatic passport. While the extent of privileges and immunities of special missions under customary international law remains unclear, State practice suggests that it does not currently reach the level accorded to diplomatic agents. 10 As the ICJ put it in the Arrest Warrant Case (Democratic Republic of the Congo v Belgium): in international law it is firmly established that certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal (at para. 51). 11 The Court clarified the status of an incumbent Minister of Foreign Affairs who, when abroad, enjoys full immunity from criminal jurisdiction and inviolability. Therefore, such high-ranking members of governments, by virtue of their functions representing a State, enjoy immunity and inviolability irrespective of whether they are part of a special mission or are conducting official business (see also Heads of Governments and Other Senior Officials). In the Case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), the Court confirmed that high-ranking officials such as the Public Prosecutor and Chief of National Security did not enjoy full immunity abroad when the Special Missions Convention and the VCDR do not apply (at para. 194). 12 National courts ( International Law and Domestic [Municipal] Law) have dealt with questions of immunity for special missions and, in practice, States appear to be rather generous in granting such immunity. Although in 1961 members of the French Property Commission in Egypt were at first denied immunity from criminal charges (the claim that their temporary performance of diplomatic functions gave rise to a position similar to that of permanent diplomatic missions and that immunities hat been agreed between the governments was not accepted), proceedings were adjourned sine die and the accused were released. The grounds for this decision were not made public, though the prosecution had argued that the mission s restricted non-political functions were deemed not to give rise to immunity (Watts [1963]). This view has been defended by some (see also R v Governor of Pentonville Prison, ex p Teja), though it appears that the decisive criteria in State practice for granting immunity are whether the mission represents the State and whether the receiving State has given its consent. The ILC also dismissed any distinction according to the nature of the mission Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 2

3 13 In most cases, courts have been concerned with the question of whether a special mission even existed, since such claims of immunity arise chiefly when no other plea of immunity is available. In the UK and the US not parties to the Convention on Special Missions courts have found the requirement of consent of the host State indispensable for granting immunity to a special mission (R v Governor of Pentonville Prison, ex p Osman [No 2]), and travelling on a diplomatic passport does not automatically lead to special mission immunity without express consent of the receiving State (US v Sissoko). States are often generous in shielding temporary representatives of foreign States from court proceedings for the purpose of maintaining good relations with the respective State (eg for a grant of immunity for an official mission of the Prince of Wales to obtain an honorary degree in Kilroy v Windsor). 14 In some cases, consent of the receiving State was granted retroactively after court proceedings had commenced (Abdulaziz v Metropolitan Dade County and Others). This was also the course of action in the Tabatabai Case (Bundesgerichtshof) where an agreement between governments granting immunity was later construed and the court expressed doubts as to whether the immunity of a special envoy of the Iranian Government from criminal proceedings in fact had its basis in customary international law. 15 With the recent developments towards ensuring accountability for serious violations of human rights and humanitarian law, national courts have been increasingly seized with cases concerning high-level officials of foreign States and raising the question of special mission status. Special mission immunity, however, applies even in cases concerning international crimes. In Re Bo Xilai, an arrest warrant against the Chinese minister of commerce on allegations of torture was rejected since he was found to enjoy immunity as part of the official delegation for a State visit of the Chinese president under customary international law. The same Chinese minister was the subject of later US proceedings in which the US government filed a suggestion of immunity, arguing that he enjoyed special mission immunity and also invoking foreign policy considerations (Li Weixum v Bo Xilai). In September 2009, the application for an arrest warrant for war crimes against Ehud Barak, then defence minister of Israel, was denied on the grounds of immunity, allegedly after the Foreign Office had confirmed that he was on an official visit to the UK. However, an earlier request for an arrest warrant in relation to allegations of war crimes against the then acting Israeli minister of defence had been denied without reference to the nature of his visit, in application of the findings of the Arrest Warrant Case (Re General Shaul Mofaz). 16 Special mission immunity for high-ranking State officials other than ministers has also been examined in national judicial proceedings. In 2011, the Westminster Magistrates Court denied immunity in extradition proceedings to the head of the executive office of Mongolia s National Security Council, Bat Khurts, finding that he was not a member of a special mission. When Germany arrested Rose Kabuye, Chief of Protocol to the Rwandan President, in 2008 on the basis of a French warrant on terrorism charges, Germany asserted that her visit was of a private nature, which Rwanda contested, in contrast to an official visit earlier that year where it was acknowledged that she was immune. In proceedings concerning crimes against humanity and torture, a French court granted special missions immunity based on customary international law to Jean-Francois Ndengue, the Congolese chief of police, since he was on an official mission in Paris (see also Certain Criminal Proceedings in France Case [Congo v France]). D. Assessment 17 In view of the low level of acceptance of the Convention on Special Missions, the particular status of special missions is often determined on a case-by-case basis by agreement between the sending and receiving States. The better view seems to be that under customary international law persons on special missions accepted as such by the receiving State are at least entitled to immunity from suit and freedom from arrest for the duration of the mission. Any lack of clarity concerning other privileges and immunities of special missions has seldom given rise to practical difficulties given their short stay. Rather than constituting an obstacle to the sending of special missions, requiring consent of the receiving State ensures its control over which foreign representatives enjoy immunities on its territory and enables flexibility in international relations. Select Bibliography M Bartoš Le Statut des Missions Spéciales de la Diplomatie ad hoc (1963) 108 RdC M Waters The ad hoc Diplomat: A Study in Municipal and International Law (Nijhoff The Hague 1963). AD Watts Jurisdictional Immunities of Special Missions: The French Property Commission in Egypt (1963) 12 ICLQ MR Donnarumma La Convention sur les Missions Spéciales: 8 décembre 1969 (1972) 8 RBDI Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 3

4 A Maresca Le Missioni Speciali (Giuffré Milan 1975). MH Ryan The Status of Agents on Special Mission in Customary International Law (1978) 16 ACDI F Przetacznik Diplomacy by Special Missions (1981) 59 RDI K Bockslaff and M Koch The Tabatabai Case: The Immunity of Special Envoys and the Limits of Judicial Review (1982) 25 GYIL J Wolf Die völkerrechtliche Immunität des ad hoc-diplomaten: untersucht anläßlich des Urteils des Landgericht Düsseldorf in der Strafsache gegen Dr. Sadegh Tabatabai (1983) 10 EuGRZ J Salmon Manuel de Droit Diplomatique (Bruylant Brussels 1994). AD Watts The International Law Commission vol 1 The Treaties, Part 1 (OUP Oxford 1999) C Tams A sprig of parsley that leaves a bitter taste. The Spanish-Morrocan dispute about Perejil/Leila (2002) 45 GYIL GP Buzzini Lights and Shadows of Immunities and Inviolability of State Officials in International Law: Some Comments on the Djibouti v France Case (2009) 22 LJIL I Roberts (ed) Satow s Diplomatic Practice (6 th ed OUP Oxford 2009). C Wickremasinghe Immunities Enjoyed by Officials of States and International Organizations in M Evans (ed) International Law (3 rd ed OUP Oxford 2009) D Akande and S Shah Immunities of State Officials, International Crimes, and Foreign Domestic Courts (2010) 21 EJIL EH Franey Immunity, Individuals and International Law: Which Individuals Are Immune from the Jurisdiction of National Courts under International Law (Lambert Academic Publishing Saarbrücken 2011). Select Documents Abdulaziz v Metropolitan Dade County and Others United States Court of Appeals 11 th Circuit (18 September 1984) 741 F.2d Application for Arrest Warrant for General Shaul Mofaz Bow Street Magistrate s Court (12 February 2004) (2004) 53 ICLQ 771. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3. Certain Criminal Proceedings in France Case (Republic of the Congo v France) (Order) (17 June 2003) ICJ Doc 2003 General List No 129. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (Jurisdiction and Merits) [2008] ICJ Rep 37. Convention on Special Missions (adopted 8 December 1969, entered into force 21 June 1985) 1400 UNTS 231. Convention regarding Diplomatic Officers (signed 20 February 1928, entered into force 21 May 1921) 155 LNTS 259. Kilroy v Windsor United States District Court for the Northern District of Ohio (7 December 1978) Civ No C Li Weixum v Bo Xilai United States District Court for the District of Columbia (24 July 2006) Civ No Re Bo Xilai England Bow Street Magistrate s Court (8 November 2005) 128 ILR Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 4

5 Regina v Governor of Pentonville Prison, ex parte Osman (No 2) England and Wales High Court of Justice Queen s Bench Division (21 December 1988) 88 ILR 378. Regina v Governor of Pentonville Prison, ex parte Teja England and Wales High Court of Justice Queen s Bench Division (19 January 1971) [1971] 2QB 274. Tabatabai Bundesgerichtshof [German Federal Supreme Court] (27 February 1984) 80 ILR 388. UN ILC Draft Articles on Special Missions with Commentaries (8 May 14 July 1967) [1967] vol II UNYBILC 347. UNGA Res 59/38 United Nations Convention on Jurisdictional Immunities of States and Their Property (2 December 2004) GAOR 59 th Session Supp 49 vol 1, 486. United States v Sissoko United States District Court for the Southern District of Florida (3 September 1997) 995 F Supp Vienna Convention on Consular Relations (concluded 24 April 1963, entered into force 19 March 1967) 596 UNTS 261. Vienna Convention on Diplomatic Relations (done 18 April 1961, entered into force 24 April 1961) 500 UNTS Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 5

CONVENTION ON SPECIAL MISSIONS

CONVENTION ON SPECIAL MISSIONS By Sir Michael Wood Senior Fellow of the Lauterpacht Centre for International Law, University of Cambridge Introduction The Convention on Special Missions (sometimes referred