DIPLOMATS serving abroad have enjoyed special privileges and immunities since ancient times. Not only the person of the ambassador, but his or her messages to and from his or her government have been regarded as inviolable. Indeed, specially protected communication has often been considered the cornerstone of all diplomatic privileges and immunities. Without the assurance that he can rely on the inviolability of the diplomatic pouch, for example (even when telecommunications may be intercepted), a diplomat cannot usefully perform his function of observing and reporting. And he will be hampered in his conduct of negotiations on any matter of importance if he cannot receive confidential instructions.
Nevertheless, the growing seriousness of revealed abuses of diplomatic privileges and immunities points to the need for a dramatic shift away from the total inviolability of the diplomatic pouch. In particular, a strategy is needed to deal with states using their pouches for purposes, like terrorism, that are clearly inconsistent with the pursuit of recognized diplomatic functions.
Ironically, it was only 25 years ago that the international community formalized the protections of diplomatic privileges and immunities. The 1961 Vienna Convention on Diplomatic Relations also strengthened international law in this area.
Article 27 of the Vienna Convention guaranteed the right of a diplomatic mission to free and secure communication. The effect was to accord the diplomatic pouch more absolute protection than it had been granted previously under customary international law. Customary law permitted a country receiving a pouch to challenge it, provided that country's officials had reason to believe the pouch contained unauthorized enclosures. The sending state could then elect either to take back the pouch unopened, or to open it in the presence of the authorities of the receiving state.
This practice of challenging a suspect pouch is still permitted in the case of consular traffic. But it is no longer allowed in the case of a diplomatic pouch. The pouch is supposed to contain only diplomatic documents or related reports intended for official use. But the authorities of the receiving state may no longer detain it or demand that it be returned or opened, even if they have good reason to suspect that it is being used to smuggle arms or other illegal items such as currency or narcotic drugs.
Exceptions have been made, however. In two similar but separate incidents, customs agents in Rome and in London seized large diplomatic bags when they heard moans emanating from within. Inside the bags they found, respectively, a drugged Israeli and a drugged Nigerian. Both had been kidnapped.
The latest impetus for challenging the inviolability of the diplomatic pouch has come in the wake of the Istanbul synagogue massacre and the conviction of Nezar Hindawi, who was sentenced in October by a British court to 45 years in prison for giving his unsuspecting pregnant girlfriend a bomb to carry aboard an ElAl jetliner in London. In both instances, the weapons used by the terrorists were smuggled in diplomatic pouches.
Yet, a consensus on the subject of the diplomatic pouch has so far eluded representatives at the United Nations. For close to 10 years the UN's International Law Commission has been working on new international standards relative to the diplomatic pouch. Though the commission's work is still not finished, it has moved in some useful directions with the help, since 1979, of its special rapporteur, Alexander Yankov of Bulgaria. Thus, the commission has drafted an article for a proposed treaty that would obligate a sending state to ``ensure that the privileges and immunities accorded to its diplomatic courier and diplomatic bag are not used in a manner incompatible with'' the promotion of official communications between a government and its representative abroad.
Despite the urgency of the problem, a consensus on the subject of the diplomatic pouch has not yet emerged even among American diplomats. The realization is growing that something needs to be done. But some fear that receiving states, especially those with hostile governments, may abuse the right to open diplomatic pouches.
Others, who serve in countries dominated by puritanical regimes, are reportedly concerned that they will no longer be able to import their liquor and Playboy magazines.
The need is there, nonetheless, for a treaty to prevent the abuse by terrorists and their sponsors of diplomatic privileges and immunities, and to punish such abuse when it occurs, for on one fact there is universal agreement: While the diplomatic pouch may bring everything from sensitive reports to certain amenities from home, in the age of international terrorism it can also bring sudden death.
Harris O. Shoenberg is director of United Nations Affairs, the International Council of B'nai B'rith.