By: Felix Ferdin Bakker
The existence of diplomats in a country is an important thing that is used as a means of establishing communication between countries from the national to the regional scope. It should be understood that diplomats are representatives of the government of a country who serve abroad and carry out diplomatic and consular activities to fight for the interests of the nation, state and government of their country in the receiving country or in the international organization where they are assigned. However, on the way, diplomats often make legal problems in the country where they serve, even though the legal issues made are not necessarily a reflection of the diplomat’s country of origin. Many of the problems created were purely the diplomat’s personal fault. This is sometimes really problematic because if it is related to the perspective of international law, there are rules that have been internationally agreed upon that a diplomatic official has legal immunity which has been regulated in the 1961 Vienna Convention on diplomatic relations as follows:
“Diplomatic officials are inviolable. He cannot be held responsible for any form of detention or arrest. The receiving State shall treat it with respect and shall take all appropriate steps to prevent any attack on his body, liberty or dignity.”
This makes sometimes the destination country feels very problematic and in a dilemma in providing legal action against foreign diplomats who violate existing legal provisions.
Referring to the reality and the situation and conditions, although initially diplomatic relations were reciprocal relations that had the principle of mutual benefit between the two countries, the fact is that in the field there are often cases of crimes committed by foreign diplomatic representatives in the receiving country, but the receiving country cannot take steps to prosecute the foreign diplomatic representative because a foreign diplomatic representative has immunity from the laws of the receiving country.
As for one example of a criminal act committed by a foreign diplomatic representative carried out in the receiving country which in this case was carried out by the Diplomatic Representative of Saudi Arabia in India who raped two Nepalese citizens. India’s position at that time was very problematic in terms of enforcing criminal law in the area of the country’s jurisdiction.
In this case, India can issue a memorandum of objection to Saudi Arabia to waive diplomatic immunity so that Saudi Arabian diplomatic officials can be tried according to the law in force in India. If the sending country of diplomatic officials does not pay attention to the existence of a memorandum of objection, the receiving country can carry out persona non grata against diplomatic officials who commit crimes in the receiving country. This has been regulated in Article 9 paragraph (1) of the 1961 Vienna Convention on diplomatic relations. Then the receiving country has the right to carry out persona non grata, one of which is the expulsion of diplomatic officials who have legal problems in the receiving country. However, it is regrettable that many of the countries sending diplomats have recalled or summoned diplomats who have had legal issues in the receiving country before being persona non grata.
Not long ago, the case of diplomats who caused legal problems also befell Indonesia, this is evidenced by a video that has gone viral relating to the actions of immigration officers which are considered controversial against Nigerian diplomats. The foreigner was angry and did not want to hand over the document. He also had time to rebuke the officers and even challenged to be arrested. Because he was uncooperative, he was finally taken to the immigration office,” said Head of the Regional Office of the Ministry of Law and Human Rights, DKI Jakarta, Ibnu Chuldun. It was only when he arrived at the South Jakarta Immigration Office that the foreigner confessed and handed over the Nigerian Embassy diplomatic card.
Seeing this case, it is hoped that Indonesia can play a more active diplomatic role in every country that makes diplomatic agreements to Indonesia so that if foreign diplomats make legal problems in the future, a policy that is fair will be made and not solely resolved amicably. In particular, Indonesia’s position as a state of law is appropriate and it is appropriate that the concept of state sovereignty must be enforced.
This opinion piece was written by Felix Ferdin Bakker, a cadet of the Immigration Polytechnic of the Indonesian Ministry of Law and Human Rights. This article is the author’s personal opinion and does not represent the views of the editors of Yuris Muda Indonesia.