Changing the International Law: Urban Warfare and Diplomatic Immunity


Humans are creatures of fear. They fear instability and change. The unchanging nature of the International Law is a sheer reflection of those fears and therefore the world is still governed by Legal Instruments written over 40-100 years ago, in spite of the evolution of society, of behaviours and political scenarios.

All law must recognise that its own permanence in a given form is an impossibility. - A. Pearce Higgins

The International Law must be reviewed in several fields, but for now I will only address two areas: The Law of Warfare, and the Vienna Convention on Diplomatic Relations of 1961 (with emphasis on Diplomatic Immunity).

The Law of Warfare

The International law for Armed Conflicts does not anticipate Urban Warfare – i.e. an unconventional armed conflict between States and Terrorist Groups – therefore, Unconventional Warfare cannot be analysed, nor judged, in the same way as Conventional Wars.

In a conventional war (an armed conflict between two States), both parties to the conflict abide by the international rules of engagement; whereas in an unconventional battle, one of the parties (usually a Terror Group) will not only violate the international law but will also abuse it to its benefit.

By not reviewing the International Law to adjust to new warfare realities, we incur the risk of legitimising Terrorist Organisations by placing them on the same level as State Armed Forces.

The absence of a clear distinction between Conventional and Unconventional War has pushed terror groups into finding ways to be incorporated into State Military Forces to obtain legitimacy (e.g. Hezbollah in the Lebanese Army and Hamas in the PA/PLO armed forces  [even though the Palestinian Authority is supposed to be a demilitarised entity, as per International Agreements]).

A State Armed Force will abide by the four fundamental principles of the laws of armed conflicts:

  • Military Necessity: to allow the use of force necessary to achieve a military objective.
  • Distinction: to distinguish between combatants & military targets (i.e. can be attacked) and civilians plus civilian objects (that cannot be intentionally attacked).
  • Proportionality: to acknowledge the possibility that civilians and civilian objects may be harmed (as collateral damage), as long as the expected collateral damage is not excessive in relation to the concrete and direct military advantage anticipated from the attack.
  • Humanity: to refer to the obligation to avoid actions susceptible to cause superfluous injury or unnecessary suffering (i.e. the effects of hostilities on the civilian population should be minimized).

A Terror Group will do quite the opposite:

  • Military Necessity: the use of force is the only way to achieve its goals. Peaceful means are not an option and negotiations are only an excuse to re-arm and re-group.
  • Distinction: there is no difference between combatants, military targets, civilians and civilian objects – any target is a justifiable one to spread terror and coerce states into yielding to their demands.
  • Proportionality: no difference between damage and collateral damage; for any sort of damage (lethal and otherwise) is the goal of the conflict. Proportionality is a random word employed in Propaganda against the adversary's Armed Forces, even though these are bound by the laws of armed conflicts. Terror Groups use disproportionate force while accusing the other side of being disproportionate.
  • Humanity: the effects of the hostilities on the civilian population are to be maximised. The most recent tactic includes attacking Police forces – a compromise between civilian and military targets – in order to avoid a full declaration of war (yet another loophole created by outdated International Laws).

How does one judge Urban Warfare under such conditions?

Treaties and conventions are made to be observed, but there comes a moment when even they no longer answer to the existing facts. - A. Pearce Higgins

And how can any International Court even accept to hear the arguments of Hybrid Terror Entities like PA/PLO when the law does not take into account Unconventional Armed Conflicts?

Diplomatic Immunity

This provision, present in the Vienna Convention on Diplomatic Relations 1961 (Articles 29 to 37), is basically a guarantee that Diplomatic agents or members of their immediate family have Diplomatic privileges and immunities, meaning that they:

  • May not be arrested or detained
  • May not have their residences entered and searched
  • May not be subpoenaed as witnesses
  • May not be prosecuted

However, this Convention assumes that Diplomatic agents and their immediate relatives are honest enough to never abuse their immunity and commit a crime. But many are not, and the Convention doesn't have any article protecting the Receiving States' integrity and ability to uphold the obligation to protect (their citizens and foreigners present in their territory).

Examples of Abuses

A- When a Diplomatic Agent physically abuses his son, daughter, and/or wife he cannot be arrested and prosecuted for the crime of domestic violence in the Receiving State. The International Law assumes the Sending State will do it instead, but in countries where beating a wife and children is seen as a right, how can the international law expect them to protect the basic human rights (to life and security) of those women and children?

B- Last year, in Portugal, the sons of the Iraqui Ambassador to Portugal physically assaulted a Portuguese teenager, leaving him in coma. The two boys bragged about it on social media, and because they had immunity the authorities were unable to arrest and prosecute the little thugs. Before Iraq's refusal to waiver the diplomatic immunity of the father, and the children, Portugal was compelled to declare them Personae non Gratae – but what is the message sent? If your Papa is a Diplomatic Agent you can commit crimes and get away with it.

C- Word is Money Laundering is being done through Diplomatic Bags stemming from former African Portuguese colonies, for instance. Drugs are also being trafficked through the same means. But since these bags cannot be searched, crimes are being committed in utter impunity.

The examples are endless and, therefore, the law needs to be reviewed to adjust itself to the reality on the ground. A. Pearce Higgins, in The Binding Force of the International Law, said:

Changes must occur from time to time in the contractual relations of states, and it is in regard to the abrogation and denunciation of treaties that difficult questions arise.

But if abrogation and denunciation of treaties is what we need to guarantee the safety, well-being and basic rights of the people (whose interests States should primarily serve), then let's ask those difficult questions and make the appropriate and needed changes to the International Law. It's time.


(Image: The Foot in Movement - Jenö Barcsay)

[The views expressed in this publication are solely those of the author(s) and do not necessarily reflect the views of Dissecting Society]

Comments

  1. I agree on diplomatic immunity cause unfortunately many times diplomats commit crimes and then hide behind the protection to avoid prosecution and it's not right! We need to pay attention to their actions specially when they commit acts of pedophilia.

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  2. Trying to find a human shield before posting .... So usually there is a pro- and a con- to most laws. The thing that is on my mind is what a nasty government might do to foreign diplomats. Does the law of immunity do more for the innocent or more for the guilty? But then again, laws are only meant for the law-abiding, not the lawless.

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    1. Hey Looney,

      lol...
      I am not defending that this law should be deleted, no (because you raised a very important point: what rogue countries could do to foreign diplomats); but I do defend adding exceptions to the law (i.e. adding paragraphs to the articles), because by being specific it is easier to tackle abuses, no to mention that it serves as a shield against nasty Govs. Do you disagree?

      Cheers for your comment :)

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    2. This comment has been removed by the author.

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    3. Do you disagree?" No, I don't disagree. This is more of a pondering exercise based on what you wrote. What comes to mind is a foreign intelligence service raping and beating the diplomat's wife or some other woman into a coma, then framing the diplomat. Will criminalizing the genuine crimes provide a pretext for this kind of criminal behavior by the government of Nastistan? That is, won't any exception to the laws become a loophole for the bad governments?

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    4. Looney, that is an excellent example. Yes, it is a possibility but I was thinking that the addendum to the law should include legal representation (including an investigator, if possible) provided by the Embassy itself to defend the diplomat. Only with concrete and beyond any reasonable doubt evidence of his/her crime can the diplomat lose his/her immunity and thus be prosecuted etc.

      Even when foreign intelligence services rape and beat whomsoever, there are traces of such crime - just wondering if they would be able to beat the diplomat's wife within diplomatic premises and then blame it on him; if they beat her in the streets then they would have to make sure that he doesn't have an alibi. Furthermore, a diplomat's wife rarely walks around the streets unaccompanied (and if they'd assault her then they would leave traces again)...it would be too expensive and lengthy operation to even think about setting it up, unless the diplomat is truly a criminal and foreign intel services would take advantage of the truth to have him framed. It's complex, I know...

      If the exception to the laws is specific and bears the necessary shields, then the loopholes will be narrower. But what we have right now is an open gate to commit crimes; better have exceptions with loopholes that make it difficult to commit those crimes than having a scandalous green light to commit them. Yes?

      Plus, there are other 'rules', within the Intelligence Community, to deal with Nastistan; if we reinstate Power Politics.

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  3. This is something that doesn't seem to on top of legal priorities for one simple reason: it serves a lot of purposes and a lot of interests. You are right that we should protect the people and place their interests and well-being above all things, but most politicians do not give a jot about the People, do they?
    Perhaps the next generation...

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  4. On the other hand the same laws protect spouses and children from prosecution when they kill the son of the bitch that assaults them. It goes both ways, so people get creative. Having said this I'd leave the law alone.

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