Published On:Sunday, 3 February 2019
Posted by ARAB GAZETTE. weekly newspaper issued on Sunday morning - London, UNITED KINGDOMمؤسسة الوطن العربى الإعلامية - لندن ، المملكة المتحدة . WA MEDIA FOUNDATION - LONDON, UK
Alauddin Saeed, Writes: The Diplomatic And Consular Missions, Between Immunity And The Rights Of The Host Country In International Law
Arab Gazette - London ..
The events around us are accelerating with many contradictions and blatant violations of humanitarian principles and norms and local and international laws alike. The most disturbing thing is the issuance of these violations by governments, institutions and bodies which are supposed to preserve these values ??and consolidate the work and respect them at all local and international levels in all fields. Is the value of the state and the expression of the approach of the ruling regime, whatever the state and whatever position of the modern civilized world.
Perhaps the most striking attention to the attention of the Arab public and the world in recent times is a concealment - not a disappearance, as it is mistakenly - the Saudi opposition prominent and powerful journalist Jamal Khashoggi, who was subjected to a very naive - by the standards of intelligence work - to hide it and possibly get rid of it finally on the land of a state Turkey is using the consulate general headquarters of the Saudi state in this host country of the Saudi consular mission. Khashoggi carries his nationality as a Saudi, but he opposes his ruling system by his pen, intellect, mind and culture. He has his vision, his point of view and justifications in his blind faith S freedom of expression in a country that allows so much freedom to be exercised by the love of its country, country and people and adherence to its national issues.
Jamal Khashoggi entered the house of the Consulate General of the Kingdom of Saudi Arabia in Istanbul without leaving it according to all the reports and follow-ups and evidence, according to eyewitnesses, surveillance cameras, the media and according to the security and the Turkish judiciary, and even according to the Turkish government which is the government of the host country of the Saudi consulate, The loss of Jamal Khashoggi's impact since he entered this headquarters.
Regardless of the frequency of events and their repercussions since the moment of Mr. Gamal Khashoggi and regardless of the conflicting statements and the recitation of all parties about this terrible incident, which - if proved definitively - an international crime against humanity and freedoms in the world by all standards and the implications of this expression of the methodology of repressive regimes The ruling in dealing with its opponents and the extension of governance and leadership of the country, especially in our Arab world from the darkest to the most vicious.
In spite of all these considerations, the issue of "hiding" Jamal Khashoggi has raised controversy over the extent to which the mission of the Saudi consulate in Istanbul, based in the residence of the Saudi Consul, can enjoy consular immunity. It also raised the question of the extent of the rights enjoyed by Turkey as a host country for this consular mission Its headquarters shall be based on the territory on which it exercises its sovereignty as a State vis-à-vis the Mission and the residence and residence of the Consul of Saudi Arabia, including legal and judicial procedures.
It is recognized in principle in accordance with international law and international conventions that the territories and premises of the diplomatic and consular missions of any State - all the buildings and lands belonging to it for the needs of the Diplomatic or Consular Center - are part of its territory in what is known diplomatically and in accordance with international law by the principle of "territorial extension" On the concept of "virtual" extending the territory of the State to its diplomatic and consular offices abroad and keeping diplomatic and consular envoys - and they hold their posts abroad - at their original headquarters in the countries they represent, and thus the embassies, consulates and The Kingdom of Saudi Arabia has, in this case, Saudi land which, like any other place within the borders of Saudi Arabia, has sovereignty over it and is governed by its domestic laws, including its employees. The international laws regulating its diplomatic and consular relations with the host country are also here. This confirms the true meaning of the concept of immunity Diplomatic and consular ", among other factors that must be available for the continued enjoyment of such immunity, which, according to international diplomatic law, is that the premises of the diplomatic missions are fortified and can not be accessed without the consent of the mission itself. For a mission by the authorities of the host State without the consent of the head of the mission or his substitute, except in the case of "extreme necessity". Moreover, the host State has the burden of complying with that obligation and is obliged to protect the Mission's premises from intrusion or destruction or For their dignity and a sense or a derogation from the prestige of the State to which the mission belongs. But also - in accordance with the same international laws and treaties governing - the diplomatic or consular missions' premises should not be used in an "inappropriate" manner for mission functions, with the important sign that the mission of the consular mission is mainly to promote economic and trade relations between its State and the State The issuance of passports to nationals of the host country, entry visas to their countries of origin, deportation of employees, registration of births and deaths, and documentation of contracts for nationals of the mother country.
In the diplomatic and consular affairs, there are many international conventions and treaties governing international relations based on respect for the sovereignty of the host country. The mission also emphasizes the respect of these missions for domestic laws and international treaties of host country laws, most notably the Vienna Convention on Diplomatic Relations of 1916 The Vienna Agreement on Consular Relations of 1963 under the International Diplomatic Law, which emphasizes the principle of "reciprocity" also among the States in this regard. Article 31 of the Vienna Convention on Consular Relations of 1963 stipulates that the consular role shall be inviolable in its text, provided that it is inviolably protected to the extent specified in this article. The authorities of the host State may not enter the section of the consular role reserved exclusively for the consular work except with the consent of the head of the consular mission or his representative Head of the diplomatic mission of the sending State. Such consent may be presumed when the fire or other disaster requires prompt preventive action, bearing in mind that the host State shall, in particular, take all appropriate steps to protect the consular role from any aggression or damage and to prevent disturbance or damage to its dignity. The Convention considered that the consular role, assets, consular properties and means of transport were immune to any form of confiscation for purposes of national defense or public benefit. If acquisition is necessary for such purposes, all possible measures must be taken to avoid impeding the exercise of consular functions and to pay adequate, effective and expeditious compensation to the sending State.
As for diplomats, consuls and the like, they enjoy immunity in the host country as "protected" persons. According to international law, they can not be imprisoned, detained or brought to trial, even criminally, for their premeditation - in principle - or punished by their host country, Are subject to the judicial and legal system of their countries of origin, which they represent in the host country where members of diplomatic missions are excluded from the jurisdiction of the receiving State because of the nature of their functions in the Mission in the so-called "immunity of prosecution" To take "any executive action" against MONUC funds or against its members based on the nature of their functions in accordance with the principle of "implementation immunity". The only solution in this case to the host country if a person commits a crime punishable under the law of this host country is to consider this person "undesirable" and in the orderly procedure of this case leave the host country and thus have to get the so-called diplomat " "Through the procedures of the organization, where the continuation of dealing with him as such is rejected by the state and thus loses its immunities and privileges in the host country after a specific period to be allowed to leave the territory of this country. This shall be regulated in the text of article 23 of the Vienna Convention on Consular Relations of 1963, which is the article on undesirable persons, which provides that the host State may at any time inform the sending State that a consular officer is an undesirable person or that any of the staff Mission is unacceptable. The sending State shall then, as the case may be, call or terminate the consular post. If the sending State fails within a reasonable period to implement its obligations under paragraph 1 of this article or if it fails to implement them, the host State may, as the case may be, withdraw consular leave from the person concerned or cease to be a consular officer. A member of a consular mission may be considered an unacceptable person prior to his or her arrival in the territory of the host State, or (if previously present) before taking up his functions in the consular mission and the sending State in such case shall withdraw the appointment. We have concluded that the host State is not obliged to inform the sending State of its decision in two cases:
First: the state of notification of the sending State that a consular officer is an undesirable person or that any mission personnel are inadmissible. The sending State shall then, as the case may be, call or terminate the consular post.
Second: The status of a member of a consular mission is deemed unacceptable prior to his arrival in the territory of the host country, or (if he is present there) prior to assuming his functions in the consular mission and the sending State in such case.
However, in 1973, the United Nations Convention on the Prevention of Crimes against Internationally Protected Persons was adopted, including diplomats and consuls, in which it was stated that, in exceptional cases, diplomats may be arrested or detained on the basis of self-defense or in order to protect human life . While respecting the fundamental principle that the "special residence" of diplomats and consulates, as well as their papers, correspondences and property, is fully safeguarded in line with the general principle that diplomats are protected from the civil and administrative functions of the State in which they perform their mission. The host. The sending State of the diplomatic or consular mission may also "expressly waive" the immunity of the diplomatic and consular delegates and other immunities which they possess.
In accordance with Article 41 of the Vienna Convention on Consular Relations of 1963, consular officers may not be subject to arrest or pre-trial detention except in the case of a serious offense. Except that consular officers can not be imprisoned or subject to any other form of restriction on their personal liberty except in the implementation of a final judicial decision. Therefore, the consular officer is obliged, when criminal proceedings are instituted against him, to appear before the competent authorities The course of the proceedings should respect that it deserves because of its official position and in a manner to avoid as much as possible to obstruct the exercise of consular functions.
Where it is necessary to place a consular officer in pre-trial detention, the trial against him must begin in the shortest time. In the event of the arrest of a consular officer or in the event of his / her detention pending trial or in the event of criminal prosecutions against him, the host State shall have the obligation to notify the consular officer immediately as soon as possible. To the sending State by diplomatic communication.
Notwithstanding all the privileges and immunities enjoyed by members of the diplomatic and consular corps of the host State in accordance with international diplomatic law, their obligation to respect the laws and regulations of the host State can not be omitted as an obligation not to be invoked in their violation of their immunities and privileges. , International diplomatic law and international and multilateral treaties, both multilateral and bilateral, all agree on this concept of mutual respect and the principle of reciprocity between States and respect for their laws, judicial systems and internal laws among themselves. Z does not allow breaking them as it represents an expression of sovereignty over its territory, which entails an inevitable respected by all who are of different nationalities , and it is responsible commitment to them. Article 55 of the Vienna Convention on Consular Relations of 1963 obligates all persons enjoying privileges and immunities without prejudice to respect for the laws and regulations of the host State and non-interference in its internal affairs, which is a right of the host State Is binding on members of foreign diplomatic and consular missions on its territory. It is also the right of the host country not to use the consular missions in its country for its bases, fortifications and privileges in a manner inconsistent with the rules of consular functions and for different purposes or incompatible with them.
The crime of concealing and killing prominent Saudi oppositionist Jamal Khashoggi - which has been confirmed - has caused its reactions and developments on the international scene, which entails many consequences of this heinous criminal act covering diplomatic and consular immunity and the protection of diplomatic missions and consulates And even diplomatic bags and under the expectation of the exploitation of such a kind of headquarters to be a massacre committed by representatives of a foreign state of the massacres and thus understanding the immunity and privileges that prevent them from being prosecuted and tried criminally As they believe, but diplomatic and consular immunity in accordance with the provisions of international law is, in most cases, excessive immunity and privileges, particularly in legal and judicial matters, justice, the sovereignty of the host State on its territory, its right to apply its domestic laws, All those located on the territory of the State or in its airspace or territorial waters.
I expect that States will consider that the events do not rule out the repetition of the case of Jamal Khashoggi once again in any place in the world and in the same methodology based on the use of diplomacy in the commission of crimes, including kidnapping, killing and mutilation, while diplomacy means establishing peace in International relations and their main focus is the international peace and care of common interests among countries, which was violated, but completely violated in the case of Jamal Khashoggi, I expect, but I see the practical duty to review internationally in many details regarding these immunities and the dead Azat, which is often exaggerated, which opens the way to violate the inviolability of the host countries through which and justice often.
May God have mercy in our Arab homeland, and the mercy of God the martyr Jamal Khashoggi, who was assassinated by the hands of ignorance and backwardness, the height that was best for his killers to be proud of the intellectual and cultural stature of the Arab and even of their country, free standing defending the right, justice and freedom in his country and even the world under the regimes Oppressive and tyrannical, has continued to enslave their people and abuse them in the morning, at the same time that these regimes are stirring behind the heels of their masters in the West to accept them and lick them and throw their faces and divide them while claiming their representation of Islam and praising their service to the holiest parts of the earth and blood polluted by their dirty hands. Wreak on the ground in vain and corrupt themselves against Muslims and Arabs in various affiliations in Syria, Yemen, Libya, Lebanon and other parts of the great Arab homeland.
