Article 31 of the Vienna Convention on Diplomatic Relations, 1961, provides complete immunity to diplomats from the criminal jurisdiction of the receiving state, however, there is no immunity from the jurisdiction of the sending state under article 31(4), while article 32, even allows the sending state to waive the immunity of its diplomatic agents.
According to the memorandum, “Department of State Guidance for Law Enforcement Officers With Regard to Personal Rights and Immunities of Foreign Diplomatic and Consular Personnel,” the waiver of immunity is for the benefit of the sending state, and not the concerned individual. Though the immunity is rarely waved, in 1985, Zambia waived the immunity of an official at the London Embassy, suspected of drug offences.
Whether the customary international law provides international organizations with the same kind of immunities as available to diplomats of sovereign states, is highly debated. Public international organizations cannot become parties to the Vienna Convention. In 2011, Dominique Strauss-Kahn, the managing director of the International Monetary Fund, failed to invoke diplomatic immunity when he was arrested in the US, on the criminal charges of attempting to rape a hotel maid.
However, in its Advisory Opinion of 11th April, 1949, or the ‘reparation case,’ the International Court of Justice declared that the UN possessed international personality. But the UN Peacekeeping forces personnel accused of rape, enjoy immunity, but when prosecuted, it is by the member states, on reduced charges.
The diplomats enjoy immunity from the jurisdiction of the courts of the receiving state, but they are neither exempted from the jurisdiction of the substantive criminal law, nor the jurisdiction of the sending state, which can recall and prosecute the accused diplomat.
A diplomat can be extradited to the sending state or to any impartial third state, to face prosecution under the principle of universal jurisdiction. Lord Millet of the House of Lords, ruled in ‘R v Evans,’ that a crime under international law attracts universal jurisdiction if it is contradictory to ‘jus cogens’ (peremptory norm), and can be justly considered attacking the international legal order. Universal jurisdiction allows for prosecuting international crimes, including rape. Rape was used as a weapon of war in Darfur conflict, and the UN Security Council Resolution 1820, noted that rape can constitute a war crime, a crime against humanity, or a constitutive act for genocide.
Rape was prosecuted as an international crime committed during the Second World War. The Japanese Lieutenant General Hisao Tani was found guilty by the International Military Tribunal for the Far East, for committing murder and rape of Chinese citizens during the Nanjing Massacre.
Rape was first defined in the ‘Akayesu case’ in 1998, by the International Criminal Tribunal for Rwanda; and then defined by the International Criminal Tribunal for the former Yugoslavia in the ‘Kunarac case’ in 2001, and, thereafter, defined under the ‘Elements of Crimes’ of the International Criminal Court, adopted in 2002 and revised in 2010.
State officials often abuse their immunity as in 2013, the Japanese Prime Minister, Shinzo Abe retracted the Japanese apology of 1993 and 1995, for the Japanese Imperial Army forcing ‘Comfort Women’ into sex slavery, belonging to China, North Korea, South Korea, the Philippines, Indonesia and Taiwan.
In 1927, the Permanent Court of International Justice held in ‘Chorzow case,’ that reparation should be made for violating international law. This view can also be applied on the rape cases.
International law has considerably developed in holding government officials accountable for committing international crimes including rape, which has diminished the idea of immunity as a legal defence in such cases. However, due to the unwillingness of the states to treat rape as a heinous offence, diplomats, though government officials, can get away with committing rape, even though it was never the purpose behind their diplomatic immunity.
On 18th March, 2023, it was reported that a foreign diplomat was accused of raping a Pakistani woman in Islamabad. The government of Pakistan should promptly request the sending state to waive the immunity in order to prosecute the accused, but if it is denied, then the government should ask the sending state to prosecute the accused itself. Pakistan should also amend its anti-rape laws, including the Anti-Rape (Investigation and Trial) Act, 2021, and make it mandatory to request the sending state to waive the immunity of the diplomat accused of rape, and pay reparations to the victim.