MEMORANDUM
To: Minister of Foreign Affairs
From:
Date: April 16, 2007
Re: Liability of the two high commission employees involved in the Nisshin Maru incident
Issues: Under pertinent international law, do the two Australian high commission employees stationed in Wellington involved in the Nisshin Maru incident hold legal liability and what are the legal provisions governing the liability of such commissioners.
Brief Answer: Based on article 29 and 31 of the Vienna Convention on Diplomatic Relations 1961 to which Japan, New Zealand and Australia are signatories, a diplomatic agent is inviolable and holds immunity from arrest for criminal and civil actions subjects to exceptions provided in article 31. Assuming that the two high commissioners hold diplomatic positions, they hold immunity from arrest by the New Zealand authorities making them immune from criminal liability and civil liability subject to exceptions in New Zealand. This is supported by decided cases and customs.
Facts: Nisshin Maru is a Japanese whaling vessel allowed by international law to take a maximum of 10 Minke whales in the Australasian waters for scientific purposes. This activity is opposed by several governments including that of New Zealand and by national and international advocacy groups. While in the process of taking whales, Nisshin Maru experienced an explosion caused by a bomb thrown from a smaller boat that passed Nisshin Maru. The ship experienced serious damage due to the explosion that required the Japanese government to seek the permission of New Zealand to allow the ship to dock in its port to conduct repair. New Zealand declined not only because it was a strong advocate against whaling but also because of the knowledge that the ship carried toxic materials that could contaminate its waters. The Japanese government had to arrange with the Australian government for the use of its dock in Tasmania. Along the way, Nisshin Maru met drastic weather resulting to the breakage of the ship and the abandonment of the ship by the remaining crew resulting to the deaths of several crew.
Following this incident, the Japanese government requested New Zealand to conduct an investigation into the group responsible for placing a bomb in Nisshin Maru. Based on the investigation conducted by the New Zealand authorities, the Real Rainbow Warriers, a radical anti-whaling group, was responsible for the bombing. A small boat manned by members of the group was seen to be moving towards the direction of the Nisshin Maru prior to the bombing incident. Upon deeper investigation into the membership of the group, it was found out that its leader is a senior staff member of the Australian High Commission stationed in Wellington. Another member of the group also comprised of another high-ranking staff of the Australian High Commission.
With these facts, the government of Japan asked New Zealand to prosecute all the members of the Real Rainbow Warriers including the two staff members of the Australian High Commission. This became a diplomatic issue among the countries involved requiring the consideration of the relevant international law.
Discussion: The diplomatic issue is governed by the Vienna Convention on Diplomatic Relations 1961 to which Japan, New Zealand and Australia are signatories so that the convention has been integrated into the Diplomatic Privileges and Immunities Act 1968 of New Zealand. Under Article 29 of the convention: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”
A diplomatic agent is defined in Article 1(e) of the convention as “the head of the mission or a member of the diplomatic staff of the mission”.
Based on these statutory provisions and assuming that the two staff members of the Australian High Commission fall under the definition of diplomatic agent, this means that the two staff members enjoy immunity from liability in New Zealand and arrest by the authorities in New Zealand.
However, Article 31 of the convention provides that in Section1 “a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state” together with “immunity from its civil and administrative jurisdiction” except in instances involving actions in the personal capacity of the diplomatic agent or in actions that is not related to the fulfillment of the functions of the diplomatic agent. This means that even if the two high commission employees enjoyed criminal liability, they may still be held liable for civil and administrative actions by New Zealand.
Moreover, in Section 4 of the convention, “the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State”. This means that even if New Zealand cannot file a criminal action against the diplomatic agents, the Australian government has the prerogative to file the corresponding criminal actions against the diplomatic agents involved in the Nisshin Maru incident.
Diplomatic immunity has been discussed in cases settled by the International Court of Justice. In Congo v Belgium[1], the court held that based on customary international law foreign ministers enjoy absolute immunity against any actions of authority exercised by another state despite the severity of the charges provided the person remains in office.
The case was preceded by the issuance of Belgium of a warrant of arrest against Abdulaye Yerodia Ndombasi for perpetrating crimes against humanity in breach of the 1949 Geneva Convention and other related protocols. The warrant was disseminated through the Interpol. During the issuance of the warrant of arrest, Ndombasi was holding the position of Minister for Foreign Affairs representing Congo. Congo instituted proceedings before the court to questioning the validity of the issuance of the warrant of arrest based on the violation of Belgium of the immunity of the Foreign Minister. Although, the Vienna Convention 1961 serves as guide to the resolution of the case, the court also looked into customary international law in order to define the immunity of foreign ministers. Customarily, ministers of foreign affairs are accorded immunity not for their personal benefit but in order to provide them with an environment for the effective performance of their functions as representatives of their respective states. Based on the functions that foreign ministers play, they enjoy full immunity from the criminal jurisdiction of other states and inviolability that protects them from the actions of other states that hinders the performance of their duties.[2]
The court held that based on a consideration of customary international law, the application of immunity does not distinguish between acts performed by foreign ministers in their official capacity and those performed in their private capacity or even between actions committed prior to taking up this position or during the course of the fulfillment of their duties. This means that arresting a foreign minister for criminal charges prevents the person from fulfilling his obligations. This further means that the mere threat of arrest due to the circulation of a warrant via Interpol hinders foreign ministers from traveling and limits their capacity to fulfill their obligations.
Upon examination of the common practice of states, the court was not able to determine other customary laws that point to exceptions to the immunity of foreign ministers against the criminal jurisdiction of other states together with their inviolability even when they are suspected of committing crimes against humanity.
However, the court recognizes that immunity from jurisdiction is not tantamount to their enjoyment of impunity with regard to crimes alleged to have been committed by them. Immunity works to bar the prosecution of foreign ministers for a period of time and by certain jurisdictions but this does not work to exonerate the person involved from criminal responsibility.[3] Immunity does not bar prosecution under certain circumstances such as the prosecution of the foreign minister in his own country, when the state waives immunity to allow another states to prosecute the person, and other similar circumstances determined by international customary law and international law.
The resolution to the case applies to the current case assuming that the high commission employees hold positions of diplomatic agents so that immunity extends to them. Proceeding from this assumption, this means that New Zealand cannot prosecute the two high commission employees except when Australia waives immunity and Japan cannot prosecute the two high commission employees through extradition without the waiver from Australia. If Australia does not waive immunity, the only way to proceed with criminal prosecution is if Australia commences legal action against the two high commission employees. The Vienna Convention 1961, cases decided by the International Court of Justice, and international customs supports these options.
Proceeding from the logic of the functions of diplomatic agents as representatives of the state it is understandable why states are careful about waiving immunity of their diplomatic agents because of the possible implications this may have on their standing in international relations or other similar implications. There are instances when states waive immunity but there are also other situations when immunity was not waived. Usually, immunity is waived when the crime for which the diplomatic agent is charged is serious so that immunity is not usually waived for less serious crimes.
The Georgian government granted waiver to allow the prosecution of its second highest-ranking diplomatic agent in the United States for running over a teenage girl because he was drunk. Because of the waiver, charges were filed against the diplomat and he was sentenced to 7 to 21 years imprisonment in the United States. He served a number of years before being sent back to Georgia to finish his prison term. In 2002, he was released on parole.[4]
There are more cases of refusal to grant waiver. A diplomatic agent of the United Arab Emirates was caught in an entrapment operation for soliciting sex through the internet with a 13-year-old girl. When he was arrested, he was identified as a diplomat but despite the request of the US government for waiver, UAE refused waiver and recalled their diplomat from the US. A US consul general was involved in a car accident in Russia that crippled a young man. The consul general refused to provide blood for alcohol testing. The US refused waiver and the consul general left the country. A marine guard working in the US embassy in Bucharest hit a taxi that killed the musician Teo Peter. His was intoxicated during that time but he refused to provide blood for testing. He went to Germany even before charges were filed so the Romanian government requested for waiver which was refused by the US government.[5] The difference between the two cases of US diplomats involved in criminal cases is that the consul general was not prosecuted in the US while the marine guard was prosecuted in Court Martial but was acquitted of all charges.
When waiver is refused, there are instances when the sending state commences legal action. In Canada, a diplomatic agent of Russia hit two pedestrians resulting to the death one person and injuries to the other. Prior to the incident, he had been accosted twice by police officers for suspicions of impaired driving. Canada sought waiver from Russia, which the latter refused. However, after recalling the diplomat, Russia commenced criminal action against the person resulting to a sentence of 4 years for manslaughter.[6]
These instances provide precedent for Australia to follow. It can either waive immunity to allow New Zealand or Japan to commence criminal action against the two high commission employees or refuse to waive immunity and commence criminal action on its own courts. It can also refuse waiver and not file any action against the high commission employees but this probably affect diplomatic relations so that the decision involves the careful consideration of the Australian government.
Conclusion: With regard to the liability of the two high commissioners, the government of New Zealand and Japan has the option to request the waiver of immunity to be able to file the appropriate legal action against the high commission employees, the Australian government has the option to waive immunity or refuse waiver with the option to file criminal action against the two high commission employees in its own courts for their participation in the Nisshin Maru incident, and the government of Japan has the option to utilise diplomatic pressure to ensure that the people involved in the incident will be held accountable for their actions.
0 comments:
Post a Comment