Diplomatic Immunities and Privileges; Diplomatic Mission Structure, with Deputy Minister

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International Relations

21 February 2018
Chairperson: Mr M Masango (ANC)
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Meeting Summary

The Deputy Minister of International Relations and Cooperation, companied by DIRCO officials, provided a briefing on the privileges and immunities represented in the 1961 Vienna Convention on Diplomatic Relations and the functional immunities outlined in the 1963 Vienna Convention on Consular Relations. The exercise sought to observe how these immunities and privileges are applied internationally through the South African Foreign Service Bill as well as domestically through the Diplomatic Immunities and Privileges Act. A second briefing outlined the structure of a diplomatic mission as defined by the Vienna Conventions. The Committee needed to ensure the Foreign Service Bill aligns with international standards.

Members expressed concerns about the extent of diplomatic immunities. Skepticism arose about the intentions and actions of diplomats from other countries, specifically, how much an individual protected by immunity can get away with. Members questioned the current applicability of certain provisions established by the Vienna Conventions as the situation in the world has significantly changed since their adoption.

In discussing the application of diplomatic immunities, Members referred to the recent controversies surrounding President al-Bashir and former Zimbabwean First Lady Grace Mugabe. A strong sense of frustration was expressed from the lack of resolution on both matters. Anger was also directed towards the United States, Russia, and China for their lack of membership in the International Criminal Court although they may refer cases.

The role of South Africa on the matter of Israel’s injustice towards the Palestinian people was raised during the discussion. Following the decision made by the ANC for the South African government to downgrade the embassy in Tel Aviv as a protest against Israel, the Deputy Minister maintained that a two-state solution must be sought, perhaps with the assistance of Russia as a third party.

Meeting report

Opening Statements
The Chairperson declared the principal focus of the meeting is on the foreign service. There must be a clear sense of what the Vienna Conventions encompass as well as an understanding of the structure of diplomatic meetings.

Mr Luwellyn Landers, Deputy Minister of International Relations and Cooperation, appeared before the Committee accompanied by members of DIRCO who presented on diplomatic law as well as the basic structure of a diplomatic mission. Expressing the challenges he personally faces with this matter, the Deputy Minister warned the Committee of the complex and complicated nature of this discussion.

Diplomatic Law presentation
Ms Jas de Wet, Chief State Law Advisor for DIRCO, presented to the Committee on the subject of diplomatic law, explaining that this title governs the entirety of what is being discussed by the Committee as it encompasses both international and domestic law. Diplomatic law, which is applicable to all nations, is regarded as common practice for how states correspond with each other. The presentation was to focus on diplomatic immunities and privileges as contained in the Vienna Conventions of 1961 and 1963.

Beginning with domestic law, Ms de Wet summarized the Diplomatic Immunities and Privileges Act which incorporates the two Vienna Conventions into South African legislation. The Foreign State Immunities Act also deals specifically with government and heads of state immunities, governing the question of how legal processes are to be exercised between states.

The presentation defined the difference between an immunity, procedural protection from enforcement processes, and a privilege, a type of exception. The basic rule of foreign service, which must be upheld, is that diplomats are bound to respect the laws of the receiving state. Ms de Wet explained the concept of diplomatic inviolability as it applies to individuals and missions, meaning no enforcement can interfere with that accredited person or mission.

The Committee was presented with an explanation of the different categories of immunities, a summary of diplomatic privileges, information about diplomatic bags, the remedies of the sending and receiving state, and the consular functions.

Mr L Mpumlwana (ANC) stated his assumption that a diplomat is a person who is acting in a foreign country while looking out for interest of their own country. He did not want to use word spy, however, he believes that diplomats want to find out how much they can gather from their host country in the interest of their own. This interest may be to obtain secret information, for example, how far the host country has gone in preparing nuclear bombs. The conversation must be had about diplomats entering another country and committing murder while enjoying diplomatic immunity. The host country only has the ability to request that the diplomat be removed but what if it is in the interest of the sending country for the murder to take place?

Mr M Maila (ANC) asked if the immunities surrounding diplomatic bags remain applicable even in war situations?

Ms D Raphuti (ANC) commented that one sees an awful lot of human trafficking and even human organ trafficking here in South Africa. Are these diplomatic bag immunities still relevant? In the context of trafficking, are all the diplomats that are sent here trustworthy?

Ms T Kenye (ANC) wanted clarity on page fourteen of the presentation, the immunities categories, as she did not understand how or in what cases full diplomatic immunities apply. Acknowledging page 20 of the presentation which talks about the possible remedies of receiving state, who requests the waiving of immunity of diplomats?

Mr M Hlengwa (IFP) asked how far diplomatic immunity goes in regards to special events, is it only for the summit or formal event itself? He raised the point of diplomats respecting the laws of the receiving state. For example, same sex marriage is legal in South Africa but what happens when it is not acceptable in the receiving state? Which law prevails?

Ms N Mashabela (EFF) raised the matter of Israel’s injustice towards the Palestinian people. What role does the South African government have in this?

Mr S Mokgalapa (DA) raised the visit of Omar al-Bashir to South Africa in the context of diplomatic immunity with respect for domestic law. When the African Union is hosting an event but the ground of the event is South Africa, what protections apply to this event? What happens in the distance between the airport and the event? What immunities remain outside of the specific event? The second person he referred to was Grace Mugabe. In terms of the Vienna Conventions, immunities extend to the spouse of a visiting president, what happens if this person travels on their own passport instead of an official diplomatic passport? Are they still granted the same immunities?

The Chairperson referred to the comments made about items that should not be in the diplomatic bag such as drugs. What happens when the conduct of a diplomat does not represent the goals of the sending country, or the one hosting? What happens if evidence of misconduct is no longer there? On the First Lady of Zimbabwe and Omar al-Bashir, the Chairperson wanted to make a correction to Mr Mokgalapa that it is inappropriate not to acknowledge that at the time of these incidents, President al-Bashir was in fact President of Sudan and should not be referred to simply as al-Bashir as if he were not the president, no matter how much he is hated. He should also not say Grace Mugabe as though she was not First Lady at that time. He posed a question about crimes committed by family members of diplomats when visiting another country, what do you do about that? He hopes their immunity would be limited but what happens if they run home or go to the embassy for protection? What can the receiving state do?

Deputy Minister Landers responded to the Committee members comments, stating the he believes it is long overdue to have a review of the Vienna Conventions. The Conventions were agreed to at a time where the world was just emerging from the Second World War and entering the Cold War. The conventions provided solutions for that particular time period but the situation has somewhat changed. The UN should put together a team of experts to do a review of the Vienna Conventions. This is his own personal view which may not be shared. To the questions about heads of state committing murder, that is fundamentally wrong. This Parliament came from a bad past but has undertaken a contract with the people of South Africa in the form of the Constitution which serves to guide their actions. On the matter of First Lady Grace Mugabe, clarifying that she is now the former First Lady, who had crossed over into South Africa and seriously assaulted one of our daughters. He expressed anger when discussing what punishment he would want should it have been his own daughter or grandchild. On the issue of President al-Bashir, the fact is that the South African court issued a warrant of arrest for him. He believes that a special envoy or senior diplomat should have been sent to speak to him and persuade him not to come but to send a deputy, avoiding the drama. If he had done nothing wrong, why did he run away the way he did? When it comes to heads of state, three issues need to be looked, the diplomatic, the legal, and the political. What do we say to the people of South Africa when someone comes across the border and seriously assaults one of our own daughters?

On the question of Israel’s injustice to the Palestinians and what is the role of South Africa, the Deputy Minister stated the need to have a very serious conversation about the matter. South Africa has an embassy in Tel Aviv which the ANC resolved must be downgraded as a protest against Israel. At some point Israel is going to have to sit down with the leaders of Palestine and discuss the whole question of a two state solution and until then, there will be continuous sniping between. Stating his agreement with President Ramaphosa that the two nations need to sit down and talk for there is no other way to resolve the conflict, otherwise the fighting and killing of people will continue. When do we get these two together? How and where? To their credit, the Russians have taken the initiative. They have held discussions with the Palestinians who they have excellent relations with. To his understanding, they have also held discussions with the Prime Minister of Israel who he believes should be brought to the International Criminal Court. Russia may play the role of the third party between these two as there has not been any outcome from the UN delegation. How do we get Israel to sit down with Palestine? This cannot be avoided.

In response to Mr Mpumlwana, the Deputy Minister said it is very risky, in fact suicidal, to place a diplomat in another country to spy or commit murder. He does not believe that this diplomat, even with full immunity, would be protected once a line is crossed. Murder and spying, which is treason, in some countries is punishable by death. Why would a country do that to their diplomat?

Mr Hlenqwa asked what DIRCO had done as the custodian of international relations on matter of Israel and Palestine.

Mr D Bergman (DA) stated with frustration that in some meetings, the Committee is very consistent in saying they do not want to interfere with other countries yet sometimes they say they have to. He believes it is not the responsibility of South African diplomats to answer to something that is taking place in another country.

Ms de Wet provided more information about the two diplomatic bags. The A bag always carries secret documentation which is highly confidential and regulated. The AF bag also has very strict regulations on what goes into these bags. Obviously, there can be misuse and violation but they are very much controlled and enjoy full immunity. There are certain remedies countries can take, usually of a political nature, such as not allowing the bag to leave.

Ms de Wet briefly responded to other technical questions that were asked by the Committee. Explaining the difference between functional and full diplomatic immunity, full immunity means that the person is always inviable no matter what they are doing. Functional immunity only applies when the person is exercising their work duties. In regards to diplomatic events, when South Africa hosts international conferences a host agreement is drafted in accordance with the Diplomatic Immunities and Privileges Act which is then published prior the event. It is a legal process to help regulate these events.

The Chairperson stated that South Africa has the right to confer diplomatic immunities, raising the case of the Head of State of Sudan for purposes of attending the AU Summit. Upon the court’s ruling, South Arica appealed to the ICC citing its right as a member of the AU to grant immunities to a Head of State for the purpose of executing their relative functions in attending the summit. This appeal was dismissed although this same leader was permitted to travel to the UN headquarters in the United States protected by full diplomatic immunities in 2015. Due to these immunities, the United States did not arrest the Head of State. The Chairperson expressed intense frustration towards the double standard that the United States enjoys. When South Africa appealed to the ICC on behalf of the Summit meeting, it was as though South Africa was condoning the crimes committed by this person whereas when the United States acts rightly as concerns international law in permitting the visit to the UN, despite the warrant for arrest, it is acceptable.

A Member commented that the United States is not the administrator of UN, they are merely a member of it. This would be a matter for all P5 nations, not the United States alone.

The Chairperson heatedly expressed his belief that United States should then forfeit their right to refer a case of another country to the ICC. The United States, China and Russia as well, are not members of the ICC but they still refer cases and expect the ICC to act.

Ms S Kalyan (DA) asked Ms de Wet what is the time frame for the termination of rights to come into action? She also noticed that the presentation contained outdated information about the High Commissioner of Argentine who gave up the position two years prior. How up to date is the information used for this presentation?

Mr Maila stated that the territory on which an AU summit is hosted in South Africa, in his opinion, belongs at that time to the AU. If any president attends this summit, are they coming to South Africa or are they coming to the AU?

Mr Mokgalapa responded that this is the conversation of domestic law versus international law, the question is which takes precedence. If al-Bashir came to South Africa, the court had already issued a warrant of arrest so which one take precedence, diplomatic immunity or a warrant?

Deputy Minister Landers spoke to the matters of President al-Bashir and the former First Lady. As to why the courts have not handed out judgment on Grace Mugabe, he does not know. They must wait for that judgement, however, it will likely be appealed either way. There are many grey areas here. Al-Bashir will be going before the ICC. To respond to the Chairperson’s frustrations, the Deputy Minister stated that the ICC could not ask the United States to act on a warrant of arrest when al-Bashir went to UN in New York. Long before AU Summit, the ICC informed South Africa that al-Bashir was wanted. Based on that information, a court in Pretoria issued warrant of arrest.

The Chairperson acknowledged that it is interesting to look at various heads of state, particularly in South America, to observe the type of protections they receive and the crimes they are able to commit.

Deputy Minister Landers responded that he does not believe the crime has disappeared. Immunity only lasts until an individual is no longer the head of state and that is why many African leaders want to stay in power forever. The Deputy Minister expressed that he has a problem with the prosecution of the ICC. Why were Tony Blair and George W. Bush not brought before the ICC when they launched an attack on Iraq based on the lie that there were weapons of mass destruction? No evidence of this claim has been recovered to this day. People died because of the lies told by George W. Bush, Tony Blair and the CIA!

Ms de Wet provided answers to the remaining questions raised by the Committee. In order to waive immunity, the request can only be done by the sending government. The department would go forth to the embassy located in South Africa to indicate the incident and the person involved. A request for immunities to be waived would be written and sent to the mission or directly to the sending country if the mission was not suitable. If the request is refused, it would then be asked that the person be removed from the country.
In terms of specific agreements made for diplomatic events, South Africa hosts many diplomatic events and conferences. It is an international practice in terms of the UN Convention on Immunities and Privileges that when such event is held, specific immunities and privileges would be drafted. South Africa has a standard host agreement developed and negotiated with these host organizations. Part of the agreement describes specifically within what precinct UN security will operate and a command structure is outlined. Transportation is even outlined from the moment someone lands in the country. The agreement must be published prior to the event.

Structure of a Diplomatic Mission: DIRCO briefing
Mr Kgabo Mahoai, Director General of DIRCO, provided a briefing on the diplomatic ranks that are established by the same Vienna Convention on Diplomatic Relations. The Foreign Service Bill which is before the Committee will go a long way to de-link diplomatic ranking from public service ranking which complicates many matters. The presentation summarized the various categories of missions that are conducted by the Republic of South Africa and portrayed the rankings through the utilization of charts.

Content Advisor Report
The Committee Content Advisor established the goal of assisting Members in looking at the Foreign Service Bill and relating the information talked about in the presentations back to the legislation. The Committee has to align the Conventions with the content of the Bill in terms of what international practice expects of domestic regulation. Looking at Clause 1 of the Bill, it contains definitions. When Members look into the Bill, they will have to understand the definitions presented by the Vienna Conventions to ensure that the definitions used in the Bill align. Clause 3 of the Bill talks about the nationality of people sent to missions in the Foreign Service from South Africa. It states that people participating in missions should be citizens of South Africa and should hold the nationality of the sending state. Clause 8 refers to the assets of the mission. The Bill is proposing that all other properties utilized by missions should fall under the Department. Property that is under the mission if protected from taxes and dues, however, this clause must be adjusted to ensure it aligns with the Vienna Conventions.

The Chairperson asked if it is permissible or a minister, ambassador, consul general to engage in commercial contracts in the country where they are serving? If so do they have to obtain permission fist?

Ms de Wet responded that it is not permissible to have a business running on the side for personal benefit. In very rare circumstances, activities of a commercial nature may be done on behalf of the government but not in the name of the ambassador.

Mr Maila asked if the spouse to an ambassador could have commercial business involvement? Is this allowed?

Ms de Wet responded that this varies upon site as diplomats and their family members must comply with the host country’s laws. Arrangements may be made between South Africa and other countries that would allow for work to take place. The process must go through Home Affairs and is highly regulated by proper permitting and registration.

Deputy Minister Landers added clarification that the working of spouses is agreed upon on a reciprocal basis.

The meeting was adjourned.

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