Diplomatic status should not be lightly asked or indeed given

By Neville de Silva

A Sri Lankan association in Canada has been outraged by a request supposedly made by the Berghof Foundation in Sri Lanka for diplomatic status for three of its officials.

Whether such a request has been made or not, I do not know. What I do know is that at the time of writing there has been no denial or clarification by the Berghof Foundation that I have seen of the report that appeared in a state-run newspaper.

One might therefore assume that in the absence of any response from this international non-governmental organisation (INGO) as of this writing that there is some truth to the story though the details are still to reach the public domain.

If the Berghof Foundation made an approach to the government, probably through the Foreign Ministry, the seriousness of the matter should not be minimised because it has important implications not the least of which is that diplomatic recognition is not something that should be doled out as though one was handing out JP-ships or buth packet.

It is also an issue that will concern the public following the recent accident involving the head of mission of the International Organisation for Migration (IOM) Christopher Gascon resulting in the death of a young broadcaster.

What is said to have enraged family and friends and raised public ire was Gascon’s claim to diplomatic immunity and his reported refusal to undergo a medical examination or perhaps a breathalyser test and leaving the country shortly after.

Since the accident occurred at around 5 a.m. there was natural speculation about what he was doing on the road so early. These maybe extraneous issues but increasingly with the opening up of more foreign missions in Colombo including UN offices and affiliates or associates of the UN and other inter-governmental agencies the diplomatic community has multiplied bringing with it substantive and residual problems including abuses of diplomatic status.

Diplomatic relations between states are governed by the Vienna Convention of 18th April 1961 which some editorialists who write with great passion have, if they have heard of it, not read it.

Otherwise it is difficult to understand how one could write this: “Legal opinion in Sri Lanka should from now on seek to take-up with the international community the need to rectify any loopholes or limitations in International Law pertaining to diplomatic immunity. The use of diplomatic immunity should be subjected to strict limitations and curbs. This much is clear.”

Is it that clear? The privileges and immunities of diplomatic agents are clearly stated in the Vienna Convention while the functions and status of consular agents are governed by the Vienna Convention on Consular Relations adopted in 1963.

When a revision is “now” called for-that is following the diplomatic immunity claimed by Gascon – it is naively assumed that international conventions and treaties could be simply amended to meet a particular contingency however tragic the incident might be.

If the newspaper wishes to make a joke of our legal fraternity it is one thing. But to believe that the international community will go along with the tampering with international conventions that have stood the test of time is downright silly.

Had those who wade in words at least had a cursory look at the Convention they would realise that it does not cover personnel of international organisations. Their privileges are determined on a case-by-case basis, usually based on the treaties founding these organisations. For instance diplomatic immunity is granted to the highest ranking officials of the UN or its agencies.

But not all officials attached to missions have the same diplomatic privileges that are extended to accredited diplomats. Administrative and technical staff have more limited immunity under the Convention so some countries accredit them as attaches.As far as IOM is concerned, Sri Lanka is a member of the organisation which is an inter-governmental organisation unlike the Berghof Foundation and we have decided to extent to the IOM diplomatic privileges. This would have been contained in the status of mission agreement reached between the government and the IOM.

If Gascon claimed diplomatic immunity he had a right to do so. Whether he was morally justified in not immediately assisting in whatever inquiry that might have been held or not is an entirely different issue.

If the government wishes to, it could request IOM to withdraw his diplomatic immunity. Whether IOM would do so or not is up to the organisation. Alternatively the government could ask IOM to withdraw him without too much fuss or in the extreme declare him persona non grata which is not something done lightly.

It did happen in Colombo when the Premadasa government packed off the British high commissioner David Gladstone for perceived interference in our internal affairs.

The Berghof Foundation issue is an entirely different matter. Unlike IOM or some other organisations it is not an inter-governmental body and there is no valid justification for extending diplomatic status to it.

One does not know what reasons the Foundation adduced, if it indeed asked for diplomatic privileges, in claiming diplomatic status. If sovereign nations start granting diplomatic status willy nilly it degrades the whole concept of diplomatic immunity and turns it into a farce.

The next thing we know some non-entity of an NGO will be asking the government for diplomatic privileges and immunities. It is well for the government to remember that in the public perception INGOs and NGOs are foreign-funded organisations, especially those dealing with conflict and politics, that are meddlesome and are intent on carrying out the fissiparous agendas of their foreign donors.This might be a generalisation and there could well be some NGOs that limit themselves to development and other useful work. But the general conduct of both foreign and local NGOs raise deep concerns in the public mind. More of these suspicions might have been proved correct if the commission of inquiry into NGOs had been permitted to continue without being prematurely terminated.

It is useful to remember that many of these NGOs that shout about accountability and rights are themselves hardly if ever accountable, especially with regard to their funding sources.

Some funds come from governments, churches, foundations and other donors but exactly who the donors are, how the funds are spent and on what particular projects seem often shrouded in mystery.

The Berghof Foundation does not hide the fact that it is funded by the Swiss Foreign Ministry and the German Ministry of Economic Cooperation.

Now why should an organisation that is directly funded by two European governments that have done little to curb fund raising and other activities by a group that is threatening Sri Lanka’s territorial integrity and attacking its sovereignty, be granted diplomatic status?

If either government wishes to they could make the Berghof Foundation an arm of their Colombo missions and thereby obtain diplomatic status for their senior officials. There again it is for the government to decide whether the number of diplomatic officers are commensurate with its work or excessive.

They would not want to do that because this curtails the activities of the Berghof Foundation which has been promoting federalism and trying to inculcate federalist and other political ideas that heavily dilute the present system by inviting academics and journalists on foreign jaunts and influencing them.Article 41.1 of the Vienna Convention states: “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.”

Those who have already made a study of the Berghof Foundation’s work during its brief presence in Sri Lanka at the invitation of the Ranil Wickremesinghe government (apparently at the behest of GL Peiris, then minister of constitutional affairs) might have found that it has indeed being meddling in our internal affairs.

Should such an organisation funded by foreign governments and possibly carrying out agendas close to the policy pursuits of those governments be allowed such privileges?

In raising that question one must also remember that one of the Berghof Foundation’s donors is the German Economic Cooperation Ministry and that it was the Minister for Overseas Development Heidemarie Wieczorek-Zeul who the other day suspended aid to Sri Lanka and urged other EU countries to do the same.

Was this step taken partly as a result of assessments proffered by the Berghof Foundation and other German and European NGOs who want to infiltrate the north and east again but are now stymied by the unsettled conditions?

Should such NGOs be allowed to operate freely if they are seen to prove a threat to the security and stability of the country?
That surely is a question to ponder.