NAVIGATING THE CONTOURS OF SUBSISTENCE OF DIPLOMATIC IMMUNITY FOR OFFICIAL ACTS: THE VENEZUELAN CHARGÉE D'AFFAIRES TO KENYA MURDER MYSTERY CASE

Abstract

We cannot obtain a meaningful interpretation of diplomatic immunity without earnest attention to detail and extensive study. Some provisions on diplomatic privileges and immunities in the Vienna Convention on Diplomatic Relations, 1961 ("The VCDR") are indeed too plain to be misunderstood, but there are others whose meaning does not lie on the surface to be seen at a glance. One such provision is Article 39 paragraph 2 which provides for the continuity of immunity for official conduct only. On the face of it, it might appear simplistic in that it suggests that the subsisting immunity is only functional. The real problem, however, is, given the nature of diplomatic functions, is it always possible to distinguish between a diplomat's private conduct from their official conduct?4
The International Court of Justice("The ICJ") in the Arrest Warrant Cases considered that for Ministers of Foreign Affairs, given the nature of their functions, no distinction can be drawn between acts performed in their 'official' capacity and those claimed to have been performed in their 'private capacity. In Knab v Georgia a sequel of Makharadze, the personal representatives of the victim of a car accident caused by Makharadze, a Georgian Diplomat to the USA whose immunity from diplomatic immunity from criminal jurisdiction was waived, sought to bring a civil suit against Georgia and the diplomat. Both