Tuesday, July 22, 2014

Ron Smith: Tania Billingsley and the Vienna Convention



The Vienna Convention on Diplomatic Relations provides the essential conditions for diplomats to perform their function, ‘without fear of coercion or harassment by the host country’. At the heart of this is the notion of immunity from the laws of the host country, which applies both to the persons of accredited diplomats and to the official property of the accredited state. 

Since the principle was first accepted in 1815, at Vienna, it has had a remarkable degree of respect and observance, and in the most difficult of circumstances. That is why the occupation in 1979 of the American Embassy in Tehran, and the incarceration of American diplomats, by Iranian revolutionaries, was such a shock to the international community.


The positive virtue of the central requirement of diplomatic immunity is still almost universally accepted, notwithstanding a long and lamentable list of abuses. These include cases of murder and serious crimes committed by persons with diplomatic status, as well as endless traffic and other offences by such persons that cause persisting aggravation in their host countries. Amongst these egregious cases is the 1984 Libyan Embassy siege, when a British policewoman was shot from an embassy window. The British did not enter the Embassy and persons in the Embassy were subsequently allowed to go about their business and to return to Libya.

There is also the Julian Assange case. The Australian founder of Wikileaks is, after two years, still hiding in the Ecuadorean Embassy in London to avoid extradition to Sweden to face sexual assault charges, after two years. Of course, in this case, Assange does not have diplomatic immunity but the Embassy premises have, and thus the British police cannot go in and get him. On the other hand, if he steps out for a moment, the police will assuredly nab him. Of course, states can waive diplomatic immunity and perhaps they should do so in cases where questions of harassment or persecution do not plausibly seem to arise. On the other hand any pattern of waiving immunity might bring back the problem that the Convention was designed to avoid. Certainly, states cannot be obliged to waive the well-accepted immunity of their diplomatic staff.

In the June 2014 New Zealand case in which Malaysian diplomat, Mohammed Rizalman bin Ismail, was charged with burglary and assault to commit rape, the Malaysian authorities were apparently invited to waive diplomatic immunity but bin Ismail was then allowed to leave the country, with the possibility that he might return to face the charges. Whatever the detail of these events, and whatever the intentions of the Malaysian authorities were at the time, it is clear the politicisation of the case by the victim, Tania Billingsley, apparently encouraged by Green MP, Jan Logie, gives rise to obvious grounds on which waiving immunity might be refused. The public debate has plausibly prejudiced the possibility of a fair trial.

What the outcome is for Foreign Minister, Murray McCully, remains to be seen. The internal report, presently ongoing, can hardly fail to have implications for him. It will confirm, or otherwise, that he gave instructions, or accepted certain undertakings from his staff, regarding a request that bin Ismail might wave his immunity. It will also detail the communications that subsequently passed between the Ministry and the Malaysian authorities. The extent to which these were consistent with these instructions should then be clear. The question as to how closely the Minister should have been expected to have followed these messages over subsequent weeks might then arise, especially if it appears that Ministry officials had seemed to acquiesce in an acceptance that immunity would not be waived, and especially if the request for an immunity waiver had actually been withdrawn. The issue here might turn on the precise wording on either side.

But the bottom line here is that it was always possible that the Malaysian authorities would have declined to waive diplomatic immunity and Minister McCully would have known this. It is also possible that official responses from the Ministry would have reflected this same understanding.

In the light of what is presently known, it does not seem that any ministerial apology is due, whatever disappointment there might be if the serious accusations against Mohammed bin Ismail do not come to a New Zealand court. This applies, especially to the Prime Minister. On the other hand, it may be that an apology is appropriate from Green MP, Jan Logie, who appears to have been instrumental in inducing the victim to go public and thus reducing whatever chances there might have been that Mohammed bin Ismail will be brought to trial in New Zealand.

1 comment:

Brian said...

Diplomatic Immunity.
Dr Ron Smith has set out very clearly the present position of the functions of how Diplomatic Immunity has worked, and is working among nations.
Quite frankly one must not be surprised that the Green MP Jan Logie has used this “case” to promote her own image at the expense of the “victim” Tania Billingsley. The outcome of this case against Mohammed Rizalman bin Ismail has yet to come to Trial, which will occur when he arrives back in New Zealand.
However a fair trial is as Dr Smith points out, is virtually impossible due to the huge media interest and the conclusions drawn, not to mention that we have a ground swell of emotive “hatred” and bias promoted by some Women’s organisations (with the help of the Greens) directed against the male sex. The recent gaffe by the Labour leader showing to what extent our political fraternity fear the Women’s vote and the repercussions that any remark made in defending the male sex might have, on voting at the election!
This is not the first time that the media has used and whipped up public anger on forthcoming trials, this, despite the Press Council ability (little used) to contain (not censor) the gutter media in its aim to be ahead of the eight ball with the “news”. Responsible journalism in this country has been seriously compromised over the last decades.
Many years ago there was a suggestion that diplomats that break the law in serious cases be tried in the country in which they offended; subject to agreement between the two countries before any diplomatic relations are exchanged.
While this sounds a plausible and attractive alternative for foreign diplomats under our system of justice; how would a Tania Billingsley fare in a court case held under a Muslim Regime, or even in any of those One Party Democratic States?
The present system is the best option available; the real villain of any diplomatic trial held now in New Zealand is the attitude of our Media to what constitutes a fair Trial. Brian