It has been a while, which means that it has also been a very busy time for me at the Institute: planning, plotting, collaborating, budgeting – that kind of thing.

In view of the conflict in Sudan (April 2023), and the difficulties faced by countries in evacuating their citizens, I thought it would be good to look at one of the obligations that comes with establishing a diplomatic presence, or, what happens to diplomatic immunity during a conflict.

We always put a LOT of emphasis on the obligations of the host country (under the Vienna Convention on Diplomatic Relations, the country that receives the foreign diplomats is termed a ‘receiving State’). In order for a diplomat to function with the most minimum of restrictions, it is imperative that the diplomat is given immunity under international law.

But immunity – like all else – is not absolute.

The diplomat enjoys immunity from criminal matters, but only those matters which are considered under the criminal jurisdiction of the host country. The diplomat is never given immunity for those crimes under the jurisdiction of the sending State. This means that the diplomat is still bound by the laws of his own country, even if the country that he has been assigned to does not consider his actions a crime.

For civil jurisdiction, it is even more complicated. Suffice to say that Article 31 of the Vienna Convention puts specific caveats on immunity in civil matters. A diplomat only enjoys immunity when he is acting in his official capacity, which means that debts, for example, that he incurs on his own expenses, are not covered by immunity. Neither are any other commercial transactions that he enters into on his own and without the instructions of his country.

The receiving State is also expected to ensure that the embassy, the Residence of the Ambassador and all communications of the mission are secured, even to the extent of putting in extra measures. This is why the phrase ‘special duty’ is used when relating to the obligation of the host country. It includes not only trespass and damage, but also any defacement that may affect the dignity of the mission.

What is less discussed is the obligation of the sending State. And this includes NOT establishing other offices in the host country, without prior consent. Logically speaking, if the host country had to deploy resources to protect the diplomatic mission, then it is only fair that foreign offices should not appear like mushrooms after the rain.

Finally, immunity or no, it is only diplomatic immunity that applies here. In a situation of conflict such as what is happening in Sudan and other parts of the world, immunity from bullets and hazards cannot be guaranteed. In any case, in a situation of crisis, the first obligation of a host country is to notify all embassies that it can no longer uphold its end of the Vienna Convention on Diplomatic Relations 1961. Then it is up to the sending State to figure out how to ensure the safety of its personnel and citizens in that country.

My hopes that there will be a peaceful end to all this fighting.