Undiplomatic immunity

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By Scott Shepherd

In the past few weeks, Korea has seen a number of diplomatic faux pas, to say the least. Last Saturday it was revealed that two employees of the Pakistani embassy were allegedly caught shoplifting; strangely, they were accused of stealing chocolates and a hat, which doesn't seem worth risking a diplomatic career over. Much bigger news, however, was the story of the Belgian ambassador's Chinese wife, Xiang Xueqiu, who was accused of slapping a worker at a clothes shop in Seoul.

Her disdain towards the staff is visible even through the blurred CCTV footage. Accompanied by a picture of the employee's shockingly reddened face (how hard that slap must have been!), the news caused an almighty fury, which was further fanned by the fact that Xueqiu is Chinese.

This public anger was exacerbated further still because, as the wife of a foreign diplomat, Xueqiu is immune from prosecution here. Indeed, the police let her go because they have no right to arrest her. Similarly, the police closed the case of one of the Pakistani embassy workers after establishing that he too had immunity.

In these situations, it's hard not to feel pretty peeved at the whole system of diplomatic immunity. While most mere mortals who commit crimes have to bear the full brunt of the law, these lofty ambassadors and attaches have their very own Get Out Of Jail Free card ― in fact, it's more of a Don't Go To Jail In The First Place card. There are countless instances of people abusing diplomatic immunity, many of them far more grievous than what's been happening in Seoul this month. Of the many examples, one that sticks out is the case of Harry Dunn, the British 19-year-old who was killed by an American with diplomatic immunity driving on the wrong side of the road. The driver, named Anne Sacoolas, fled the country and faced no legal repercussions.

Diplomatic immunity undoubtedly leads to unfair privilege for a select few. Nonetheless, despite all its shortcomings, it is a vital system that plays an important role in international relations.

With the obvious exception of spies, it's not in the sending country's interest for its diplomats to act improperly. Xueqiu's behaviour has caused all the more outrage because her husband represents an entire nation. His whole job is to promote Belgium and represent its interests. This kind of incident fundamentally undermines his role. And while Korea has no legal way to prosecute Xueqiu, Belgium has a number of options. It could fire her husband, for a start. But every country also has the right to prosecute its diplomats for their actions abroad, as recently demonstrated by the trial of New Zealand's top military attache in the U.S. Finally, the sending country has the right to simply waive a diplomat's immunity, allowing for prosecution in the host country.

Furthermore, while host countries cannot prosecute or even force diplomats to be questioned, they do have the absolute right to expel any diplomat without even providing a reason.

History is full of diplomats and national representatives being humiliated, injured and killed. There have been plenty of wars started because of the abuse and mistreatment of diplomats. It's hard to imagine an ambassador in 2021 being publicly shamed or attacked in the ways of the past ― at least in most countries ― but it doesn't take much imagination to think of how easily diplomats could be intimidated and attacked without strong protection based on both reciprocity and international law.

The 1961 Vienna Convention on Diplomatic Relations, which is the basis for modern diplomatic immunity, creates a fairer and safer way of doing diplomacy by requiring all countries, strong or weak, to protect diplomatic agents and their families. It defines diplomats, their families and even their residences as "inviolable", thereby protecting them from arrest and harassment by states, rogue or otherwise.

While the system undoubtedly leaves space for unscrupulous actors to misuse their immunity ― to slap with impunity or to steal without fear of prosecution ― there's little alternative. This is the least bad option. Anything else will lead to much bigger loopholes and far worse problems, abuse on much greater scale.

Every position of power and every privilege is open to abuse: diplomatic immunity is no different. Given the number of embassies and the number of countries in this world, it's no surprise that this kind of thing happens. In these situations, it is the sending nation's responsibility to ensure justice is upheld. Naturally, if countries abuse diplomatic immunity, the system will fall apart and people will start to withdraw from the treaty. There are clear examples of governments failing to live up to their obligations: the US refusal to hold Sacoolas accountable for causing the death of Harry Dunn is one of them.

In Xueqiu's case, on the other hand, it seems like the Belgian embassy is keen to rectify the situation. The ambassador himself has publicly apologized on his wife's behalf, though judging from the reaction to this apology, it has not been accepted.

Secondly, the embassy has stated that she will co-operate with the investigation, but she is in hospital having suffered a stroke. There have been plenty of angry comments suggesting that this is some kind of ruse, and of course, scraping the bottom of the barrel it's always possible to find comments wishing her harm. Despite the violence and condescension she showed in that video, Xiang Xueqiu is still a human. It is not incompatible to wish her a speedy recovery and at the same time hope that she is held accountable for her actions. In fact, quite the opposite: the hope that serious harm will befall a stranger because of a slap is at least as morally depraved as the slap itself.

It's not for me to say, but I imagine a sincere and hearty apology coming from Xueqiu herself may well quell some of the anger. In any case, the Belgian ambassador will have this sorry episode hanging over him for the rest of his tenure. I can only imagine that bigwigs somewhere in a Brussels office are already arranging to replace the ambassador, which would go a long way in limiting the damage done to the country's image here.

Despite some angry tweets, Xueqiu almost certainly won't be prosecuted for the slap in Belgium and she's even less likely to have her immunity revoked. If all else fails, of course, Korea always has the right to expel her and her husband. It might not feel like a great solution, but it certainly isn't the worst.

Since this article was written, it was announced that Xueqiu has been discharged from hospital and intends to cooperate with the police.

Dr. Scott Shepherd is a British-American academic. He has taught in universities in the U.K. and Korea, and is currently assistant professor of English at Chongshin University in Seoul. The views expressed in the article are the author's own and do not reflect the editorial direction of The Korea Times.