IMPORTANCE OF DIPLOMATIC IMMUNITIES IN ISLAMIC LAW

This article has been authored by Roopal Dhoot, a second year student at ILS Law College, Pune.




Meaning Diplomatic Immunity


The inviolability of diplomats is one of the oldest rules of International Law. In the Greek Empire, the envoy was not to be maltreated or could not be arrested or detained. In modern days, diplomatic immunity from court jurisdiction became accepted as a rule of international law with the main objective to ensure the effective performance of diplomatic functions which prevents the hosting authority from intervening with the diplomat’s work.


Diplomatic immunity is divided into two categories:


1. Immunity of the embassy premises and properties, like the buildings, vehicles, archives, and diplomatic communications. While the hosting authority has a duty to protect the diplomatic premises against any damage, the embassy remains immune from any law enforcement measures as the police are not allowed to enter the embassy except to protect human life in case of extreme emergency. In the current scenario, the notable example was the shooting incident at the Libyan embassy in London where the UK continued to respect the inviolability of the embassy despite the shooting of a police officer by a bullet fired from within the premises.


2. Immunity of the personnel working in the embassy from local court’s jurisdiction, which means that the diplomat is absolutely immune from any form of law enforcement like arrest, detention, and search. In addition to immunity, the envoy and their family also enjoy certain privileges in the hosting country. The diplomatic immunity can only be waived by the sending government; otherwise, the hosting country can declare the envoy a persona non grata.


There are certain qualities which must be possessed by the diplomats to fulfil the responsibility as an envoy to the host country. Diplomats must have knowledge, courage, wisdom, patience, persistence etc.


Origin of Diplomatic Immunity


Since the beginning, it has always been a challenge for man to maintain a harmonious and peaceful society. History has shown that prophet Muhammad was one of the successful individuals in harmonizing the relations with other states even after thousands of battles, chaotic situations, and clashes of religion between extremely different communities.


The Islamic diplomatic immunity was originated by Holy Prophet Hazrat Muhammad a long time ago. Approximately, 1400 years back and it was the time, yet civilization was still unknown to the grounding rules for the welfare and betterment of humanity as a whole. The term “Diplomatic Immunity” is being exercised all over the world. As western diplomacy is concerned, its roots are engrossed in the 1961 Vienna Convention and the 1963 Vienna Convention on Consular Relations which provided privileged to diplomats in arrest, detention and prosecutions.


Under Islamic jurisdiction, diplomats were granted certain protocols by the host country. Muslim administrators used to specify a certain amount of money every year for receiving envoys. They always tried to take good care of the diplomats.


Diplomatic Immunities in Islamic Law (Shari’ah)


The concern about diplomatic immunities has started since the very early age of Islam. Allah stated the significance in the holy Quran thus:


{13 O mankind, indeed we have created you from male and female and made you peoples and tribes that you may know one another}


Sheik Saadi explains it as “Allah made them into nations and tribes, in order to get to know each other, where each one of them would boarder himself, they would not get their acquaintance which is resulted by cooperation and the rights of relatives.”


There is also a reference verse where Allah says:

{1 O you who have believed, fulfill [all] contracts}


It is reflected in the way the Prophet sent Othman bin Affan on appointment as an envoy to serve his country and his religion. In this way, the diplomat should be granted what he or she preserves concerning the rights because it resolves a lot of the outstanding issues between the states through his or her words and his or her dialogues.

The verses on this are enormous, and the Quran presents this in various portions. In antiquity, the source of diplomatic immunities was religious in nature. However, this has changed with time. Nevertheless, Islam still preserves this. Thus, the emergence of diplomatic immunity in Islam has been derived from the Quran and the Sunnah. This is the only source that provides mankind with immunity irrespective of whether they are diplomats or infidels. The origin of this principle is the maxim which is actually the word of a prophet that says (Do no harm).This is one of the greatest rules of jurisprudence amongst Muslims.


The Prophet was concerned about the right of the seekers of the immunity. He used to take good care of them and showed appreciation towards them. He used to appoint companions to receive the delegations. He always used to listen to the delegation first to get to know the subject matter. These practices encouraged the countries which were dealing within the Islamic states because they got immunity within the Islamic state. They were eligible and represented their countries in the form of better representation. It is called the Rule of Reciprocity. In other words, it is the practice of exchanging things with others for mutual benefits, especially privileges granted by one country or organisation to another.


Current Status of Diplomatic Immunity


In June 2017, A Saudi Arabian citizen killed a German man when he opened his car door directly into the cyclists’ path. In Germany, such a case of negligent manslaughter would have otherwise been prosecuted, but the man in question was a Saudi diplomat. He was able to claim diplomatic immunity and left the country without being charged. But an overwhelming majority of violations are minor, for example, One major complaint by The New York City which is home to the United Nations Headquarters, is that visiting diplomats park wherever they want and ignore any parking tickets citing diplomatic immunity. In fact, as of 2014 more than 16 million dollars in fines to diplomats remains unpaid, but diplomats have also been accused of many more serious crimes including drug smuggling, money laundering, spying, tax evasion, and even slavery and murder. Ultimately diplomat acts as representatives of their state while diplomatic immunity can create unresolved criminal situations.


Conclusion


The Islamic law had already been introduced, even applied successfully, and the results were also fruitful. The rights of the delegations and the rule to deal with such delegations have been implemented in best possible manner. But this law was introduced about fourteen centuries ago, which mainly concerns about the protection and maintenance of the lives of the envoys. The current situation and the crimes which are taking place is way much heinous as compared to those times. For example, Iran also became an Islamic state subject to Shari’a in December 1979. The Vienna Convention on Diplomatic Relations, are in conformity with Islamic law, which also makes them binding on Iran. But the continued holding of detainees is crime under Islamic law. Iran’s failure to protect the hostages by commission constitutes a breach of its international obligation. Hence, the Islamic law has laid down the bases but has not provided a model on how to immunize the delegations in successful ways in today’s era. In Islamic law it is not provided how to deal with such situations. According to the author, the problem is that the principle of reciprocity prevents states from introducing, through practice, perhaps desirable changes to diplomatic law. It can be done by establishing a hierarchy between diplomatic law on one hand and human rights and international humanitarian law on the other, and to form such peaceful and harmonious worldwide relations, amendments are required in this international Islamic law.

 
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