Ps&Is for DWIs – What should the Public Know?
In order for diplomatic missions to function, international law has long accorded diplomats and their families immunity from all local criminal laws. And when a major crime occurs involving a diplomat, there’s often a lot of press attention on the case by virtue of the privileges and immunities (Ps&Is) involved.
But Ps&Is aren’t limited to allegations of rape or manslaughter, they extend to ALL local laws, often posing problems for the host State as it tries to police dangerous behavior while also complying with its international law obligations. So, how do States deal with day-to-day misdemeanors or mid-level criminal activities? In Australia, they write letters. As this story in ninemsn notes:
More than two dozen foreign diplomats and consular officials have been warned about repeated or serious driving offences on Australian soil over the past three years.
The offences include drink driving, speeding more than 30km/h over the limit, running red lights, driving while talking on a mobile phone and not wearing a seat belt. But none of the offenders can be prosecuted or even lose their driving licence because of diplomatic immunity.
The offences are outlined in 26 warning letters sent by the Department of Foreign Affairs since 2010 to the heads of various foreign embassies and consulates about members of staff who had lost seven or more demerit points on their licence or who were involved in a serious driving incident that came to the attention of police.
One letter describes a diplomat who lost 15 demerit points from 11 speeding fines in just 15 months. Another refers to a diplomat who was deemed too drunk to continue driving after being intercepted by police on Canberra’s Commonwealth Avenue Bridge at 1am on a Sunday. Police only agreed to release him when one of his own passengers agreed to get behind the wheel and take him home.
The story links to the actual letters sent out by the Australian Foreign Ministry – see here. I found the extensive redactions especially interesting — looking at the documents, you don’t know who did what or what government she or he represented. The Australian Chief of Protocol explains that disclosing such details could damage Australia’s good relations with foreign governments and “their willingness to cooperate and communicate with Australian government officials in the future.”
Hmmm. Now, I’m a supporter of P&Is for their functional value — I truly believe they are a key cog in diplomatic machinery. But, I’m less sanguine about the lack of transparency the Australian letters suggest. True, under the Vienna Convention on Diplomatic Relations (VCDR), Australia has to accord these foreign diplomats immunity. But, I don’t think there’s anything in the VCDR that requires Australia to refrain from having transparency about what would otherwise have been violations of its domestic law but for the application of Ps&Is. Now, maybe if Australia were to selectively announce incidents for some states’ representatives and not others, it might have a problem (VCDR Article 47 requires non-discrimination by the host State with respect to the provision of VCDR rights, but that’s assuming we’re talking about VCDR Ps&Is here, which I don’t think we are).
As it stands, it seems like Australia’s trying to avoid bad publicity for wayward diplomatic activity. And whatever the Ps&Is do functionally, it’s worth noting sending States have a duty of their own here — see, e.g., VCDR Article 40:
1.Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.
In short, it doesn’t seem like there’s any legal requirement to explain Australia’s redactions here.
Nor am I completely persuaded by the supposed policy in play that keeps such information private. Of course, it makes relations easier if governments keep foreign diplomatic transgressions from the public eye. And, I have no doubt sending States take these sorts of communications from States like Australia seriously; I suspect some recipients (but certainly not all) will pursue internal investigations of their own.
But, does it really serve the interests Ps&Is protect to make sure diplomats don’t get their names listed in the paper or on-line as most “regular” citizens are when they are identified in a police report? If anything, Australia’s policy seems likely to contribute to continuing public hostility to the very idea of Ps&Is. Rather than covering up the way Ps&Is operate, wouldn’t States be better served by educating and explaining the system whenever it’s invoked, thereby normalizing it in some way? Moreover, does the fact that diplomats know they won’t even be publicly linked with their bad behavior further weaken any incentive to respect local laws from where things stand with Ps&Is already? That said, I can see that in today’s news-a-minute world, publicity could itself become a tool host States could use to influence foreign diplomatic behavior and thus something that should be protected from abuse. If that’s so, however, is it enough to have a “policy” on non-public disclosure, especially, when exceptions are clearly made for “big” cases?
What do others think? Should host government like Australia keep quiet about foreign diplomatic run-in’s with local law enforcement? Or, does the public have some interest in more disclosure of such events where Ps&Is are invoked or applied?