This article has been written by Mr. Omkar Tamhane, a first-year student at Maharashtra National Law University, Mumbai.   

ABSTRACT

The article explores the complex interactions between national and international legal systems that control immunity for foreign nationals and state officials, with an emphasis on the significant Ahmadou Sadio Diallo case. The episode brings to light the details surrounding the immunity afforded to state representatives while they are under their control, as well as the doctrine of sovereign immunity and other historical ideas such as “The King can do no wrong” that underpin it.

With reference to documents like the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, the research goes further to examine immunity in international law’s larger framework. The topic of immunity inside domestic jurisdictions is also covered in the discussion, with a focus on India, where laws such as the Diplomatic Relations (Vienna Convention) Act of 1972 and Section 86 of the Code of Civil Procedure, 1908, are very important.

The importance of immunity for public servants is emphasized in the conclusion, both nationally and internationally. It says that these laws enable officials to carry out their responsibilities without worrying about facing consequences from the law. The Mr. Diallo case serves as a precedent, upholding the immunity theory for state representatives and emphasizing its critical function in promoting diplomatic relations and safeguarding state sovereignty.

KEYWORDS: Ahmadou Sadio Diallo, State Officials Immunity, Diplomats, Sovereignty violations, International Law, Foreign Nationals.

INTRODUCTION

The incident concerning with Ahmadou Sadio Diallo is an interesting circumstance of immunity provided to state officials and/or foreign nationals in a state’s exclusive jurisdiction. It is imperative to understand all the international conventions and their ratified versions in the state’s own legislation which empowers immunity for state representatives as a priority. The idea of immunity for state officials provides immunity to the government representatives or as generally referred to as delegates of the particular nation state; surfaces from the notion which was prevalent in the colonial period across the globe. This notion is the concept that The King can do no wrong. This also stems from the legal maxim Rex non potest peccare which means the same and comes from the English common law. This gave the rise to the doctrine of sovereign immunity also sometimes called as the governmental immunity of the state. The doctrine of sovereign immunity developed from this principle prevents sovereigns, including the government or its branches, departments and agencies, from being sued without their consent. The rules of state immunity concern the protection which a state is given from being sued in the courts of other states. The rules relate to legal proceedings in the courts of another state, not in a state’s own courts. The rules developed at a time when it was thought to be an infringement of a state’s sovereignty to bring proceedings against it or its officials in a foreign country. The sovereignty of a state is considered to the most bejewelled ornament that the state can adorn. Hence, infringing this provision is considered as an act which is strongly looked down upon. 

BACKGROUND

In the concerned case, Ahmadou Sadio Diallo was a Guinean national who was residing in the Democratic Republic of Congo (herein after referred to as the DRC). Mr. Diallo was a quite persuasive and a successful businessman in the DRC. It was claimed by Guinea that he was unjustly imprisoned by the authorities in the DRC after being a resident of the state of DRC for around 32 long years. He was despoiled of his large investments, business, movable and immovable property and back accounts just before he was vanquished from the state as a whole. The DRC stated that he constituted a part of an allege coup on the then government which could have threatened the nation-state’s security altogether. The allegations made by Guinea were about serious violations of the Human right Laws and his rights under the International Law, both as an individual and as a businessman, and which was later disputed in the International Court of Justice. His rights as associé in Africom-Zaire and Africontainers-Zaire were also a ground for contention in the heated court proceedings, which gave him certain diplomatic privileges. 

The court ruled for compensation of non-material injury suffered by Mr. Diallo. The ICJ elaborated that due to the wrongful conduct of the authorities of the DRC, Mr. Diallo has been caused psychological sufferings and an acutely large loss of reputation which was very important to him in his personal capacity as well for his business. The International Court of Justice awarded 85,000 USD as compensation for non-material injury to Mr. Diallo as a result of this issue. 

The ICJ also tried to factor in the material injury suffered by Mr. Diallo. Although the court did not find itself with substantive evidence to prove any losses suffered as material injury and just granted a 10,000 USD compensation on grounds of equitable consideration.

In the final statement of the judgement, the total sum was to be paid by the DRC by 31st August 2012, post which an interest of 6% per annum shall be recurred starting from 1st September 2012. This relief is bestowed upon Mr. Diallo as compensation to the legal injury inflicted upon him by the DRC.

ANALYSIS

The Court emphasized the importance of diplomatic agents’ immunity in fostering international relations and ensuring the smooth functioning of diplomatic missions. It confirmed that immunity applies not only to a diplomatic agent’s official acts but also extends to their private acts, as long as they are closely connected to their official functions.

The fascinating case was a wake-up call to the issue of immunity provided by the government of a state to diplomats or representatives of other states. This is done with the motive of taking precaution that the sovereignty of the diplomat or in turn the state they represent is not violated under any action taken by them in their official capacity or personal capacity linked to professional duty.

One of the important instruments where this immunity is derived, with reference to the above-stated case is the African Charter on Human and Peoples’ Rights. This document enshrines in itself and draws inspiration from provisions of various African instruments on human and peoples’ rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples’ rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations. 

Another important statute which must be considered in the light of human rights in general is the International Covenant on Civil and Political Rights. One of the important and relevant provision in Article 2 Section 3 (b) which clearly states as follows:

“To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy”.

A reasonable interpretation of the above stated provision re-enforces the decision of International Court of Justice which issued an order in favour of Guinea. It is also an obligation to note that both the states involved are parties to the referred Covenant, in this case Guinea and DRC.

Before we move to the original topic of diplomatic immunity for foreign nationals, one should be well aware of the status of immunity in domestic jurisdiction. Under the current system, the Government personnel have the privilege of “official immunity”– effectively protecting these officials from criminal prosecution or civil suit even in gravest abuses of position and violation of rights as well. 

Another type of immunity that these government officials which include its various organs, enjoy is “sovereign immunity”. These officials prevent them from being sued for damages for human rights violations as well. These two forms of immunity indirectly allow officials to commit severe violations and prevent victims from obtaining redressal.

In furtherance of this immunity, let us try to understand the convoluted concept with reference to India. The State of India also has certain provisions under its legal framework which grants diplomatic immunity to certain legal entities within the state’s jurisdiction. The provisions which empower state immunity are as under-stated. 

Firstly, Section 86 of the Code of Civil Procedure, 1908 lays down the principle which prevents suits against foreign states and its officials. Let us try to perceive the provisions laid under this section.

The very first sub-section, ie. Sub-section 1 of section 86 of CPC strictly states that no foreign state can be sued in any competent court which will otherwise have the competent jurisdiction to try the case. The exception to this is that in any case where the Central Government certifies that too in writing by a Secretary to the Government. If a situation arises when the Secretary gives written consent on behalf of the Central government, the suit may be instituted and the trials may begin in a court of competent jurisdiction. 

One of the important provision, Sub-section 3 of section 86 of CPC also clearly lines out that no decree shall be executed against the property of any foreign state. The exception to this sub-section is again the consent of Central Government is with certified writing by a Secretary of the Government. 

The section is also very clear in its application and also lists in detail all the beneficiaries who are included for this immunity. Sub-section 4 of the provision states the beneficiaries as follows:

“(a) any ruler of a foreign State; any Ambassador or Envoy of a foreign State;

(b) any High Commissioner of a Commonwealth country; and

(c) any such member of the staff [of the foreign State or the staff or retinue of the Ambassador] or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf”

The provision is also very accommodative as it leaves a scope for interpretation as it also states at the end, “as they apply in relation to a Foreign State.” 

In Mirza Ali Akbar Kashani v. United Arab Republic, 1965 SCC OnLine SC 93, it was the immunity provided to foreign states under section 86 of CPC, can be even extended to government corporations/ government undertakings which have been incorporated to undertake activities which were directly activities of the foreign states. A five-judge bench of the Supreme Court held that section 86(1) CPC modifies the international doctrine of sovereign immunity to a certain extent, and when a suit is instituted against a foreign state with the consent of the government, it is not open for a foreign state to rely upon the doctrine of sovereign immunity under international law.

Secondly, India is a party to Vienna Convention on Diplomatic Relations, 1961. India was a signatory to this convention and took time to ratification and its state implementation. India introduced a ratified act which will have effect from its introduction in the name of Diplomatic Relations (Vienna Convention) Act 1972. A select few of the Convention’s provisions, namely 29, 30, 31, 32, 37, 38, and 39, have been extended to diplomatic agents, their families, employees, and servants, giving them legal force in India. These immunities do although have some exceptions in a court like in those cases where the staff of a foreign diplomat is an Indian national. In a case, such as the one stated in the example, the court will find itself with necessary jurisdiction to try the case with adequate procedure. 

This act empowers in India bestowment of an immunity to foreign diplomats along with their family and staff who accompany them in their endeavours of strengthening diplomatic ties in the host nation. This is motivated by the ideal that these officials are empowered to undertake their duties as an official which in any other scenario may deter them from doing an action which might have repercussions had this immunity not existed in the first place. 

CONCLUSION 

The case of Mr. Diallo was a strong precedential in establishing the doctrine of immunity for state officials. This is an integral part of International Law which empowers its application and officials to undertake their duties. Immunity is provided to representatives who are working in official capacity and hold relevant offices. This immunity is also indirectly given to government officials within domestic jurisdiction for them to fearlessly continue in their pursuance of their duties as allocated to them by their superior competent authority. 

The legal provisions which enable this immunity in India are section 86 of CPC 1908 and Diplomatic Relations (Vienna Convention) Act 1972. These frameworks lay down an extensive mechanism barring the diplomats from being sued in the domestic jurisdiction of the State of India. Hence, Immunity of State officials of both government as well as those who are foreign diplomats constitutes an important feature of International Law.

REFERENCES

1.  https://www.icj-cij.org/sites/default/files/case-related/103/103-20070524-JUD-01-00-EN.pdf. 
2. https://icj-cij.org/case/103
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4. Chiara Giorgetti. “INTRODUCTORY NOTE TO THE INTERNATIONAL COURT OF JUSTICE: AHMADOU SADIO DIALLO (GUINEA V. DEM. REP. CONGO), COMPENSATION OWED BY THE DEMOCRATIC REPUBLIC OF THE CONGO TO THE REPUBLIC OF GUINEA.” International Legal Materials, vol. 51, no. 4, 2012, pp. 737–54. JSTOR, https://doi.org/10.5305/intelegamate.51.4.0737  Accessed 23 Jan. 2024.
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7. https://www.law.cornell.edu/wex/rex_non_potest_peccare.
8. https://www.african-court.org/wpafc/wp-content/uploads/2020/04/AFRICAN-BANJUL-CHARTER-ON-HUMAN-AND-PEOPLES-RIGHTS.pdf.
9. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights.
10. https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00051_190805_1523340333624&sectionId=33423&sectionno=86&orderno=90.
11. https://www.lexology.com/library/detail.aspx?g=5521ec58-6c1c-4577-a285-abed6baae0b4.