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Waiver of Immunity of a Diplomat
The waiver of immunity, empowered by Article 32, is the “act by which the sending State renounces that immunity with regard to the person concerned”. Once waiver occurs, the local courts in the receiving State will have jurisdiction to prosecute and punish the offender. The Preamble of the Vienna Convention states that the purpose of diplomatic agent’s immunity is not to benefit the individual, but to ensure that his performance to represent his State is unhindered. A further aspect of the problem was whether the head of the mission was entitled to waive immunity of any member of his staff or if it always required a formal decision by the sending State. The view that the head of mission could waive immunity was rejected by the majority of the ILC.[1] Furthermore, waiver by the sending State is a serious decision, for it places the diplomatic agent, as far as legal responsibility is concerned, in a situation where he is equal to that of a citizen in the receiving State.
When a diplomat is found smuggling drugs and claims immunity, the receiving State in most instances will request waiver of immunity from the sending State. There have even been instances where the sending State would grant a conditional waiver.
Some States do waive immunity of diplomats, family or staff, waiver is seldom granted. The decision to waive immunity is not based on a legal decision but rather on a political basis; for instance, retaliatory measures taken against their own diplomats or even fabricated charges being brought against their personnel in the receiving State. Waiver is a good remedy if States are willing to grant it. A possible solution is for States to enter into agreements for automatic waiver in serious criminal offences. This would serve as a better deterrent than merely having the option to waive immunity.
References and Works Cited
[1] Barker, Supra Note 1, at 120.