Historically, diplomatic immunity originated from giving respect to the messengers who used to deliver messages on behalf of their rulers. They were protected, even when they brought bad news. Diplomatic immunity is a principle of international law by which certain foreign government officials or international organization officials will be exempt from being subjected to the jurisdiction of the other country¡¯s police and judges in which they are present.
The Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963 codified most diplomatic and consular practices, including diplomatic immunity. The conventions provide immunity based on the need for immunity in performing their duties. The immunity level of a diplomatic agent is higher than that of consular officers. The idea of diplomatic immunity has strengthened healthy international relations among nations in a multipolar world.
The diplomatic privileges and immunities guaranteed to the diplomatic agents or members of their immediate family are: they may not be arrested or detained; they may not have their residences entered and searched; they may not be subpoenaed as witnesses; and they may not be prosecuted. The acts of diplomacy may be performed by the head of state, government, minister of foreign relations, or diplomatic agents.
Diplomatic immunity follows the theory of reciprocity, which states that the favors, penalties, and benefits that are granted by one state to the citizens or diplomatic agencies of another state should be returned with dignity. It can be done in any way possible, like by reducing tariffs, relaxing visa requirements, easing travel restrictions, etc.
Diplomatic immunity, as a rule of international law, shields the diplomatic agents from the jurisdiction of the foreign state, which enables them to perform their function without any interference. Functional necessity is the fundamental principle of diplomatic immunity.
The Preamble of the Vienna Convention clearly states that
"The purpose of the immunities and privileges is to ensure that the functions of the diplomatic missions are performed efficiently and effectively in the representing state."
It is true that diplomats are exempt from the criminal, civil, and administrative jurisdiction of the host country. It does not also mean that they can behave in any way in the host country that they are invited to. Police officers are allowed to disregard it whenever necessary to prevent a grave crime or an imminent danger to public safety.
In cases of traffic violations, even though diplomatic vehicles may not be impounded, police officers are still allowed to issue citations, and host governments may suspend driving privileges.
According to Article 32, the immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending state. If a person is a crime suspect, the host country can request that the home country waive the crime suspect¡¯s immunity. In the alternative, host countries may expel the suspect from their territory.
The immunity provided by the host country does not exempt the person from the jurisdiction of their home country. It is also up to the host country to decide whether any member of the diplomatic staff is an "unwanted person¡¯. This may be done at any time, and there is no obligation to explain such a decision. In these situations, the home country, as a rule, would recall the person or terminate his or her function with the mission.
BRICS is a grouping of emerging economies around the world, namely Brazil, Russia, India, China, and South Africa. They had formal annual summits beginning in 2009. These meetings are held to improve economic conditions within BRICS countries and give their leaders the opportunity to work in collaboration regarding these efforts.
For the up-coming summit, the South African government has granted diplomatic immunity to all international participants, including Russia's President Vladimir Putin and other Russian officials, for BRICS-related events that are to be held in the country.
As one of the principal organs of the United Nations, the International Court of Justice issued a warrant for Putin¡¯s arrest. Since South Africa is a member of the group, it is obliged to arrest Putin when he is in the country. Despite this, South Africa, as the current chair of the BRICS alliance, has officially invited Putin to the summit in August.
Article 27 of the Rome Statute states that even sitting heads of state are not immune from prosecution by the ICC. On the contrary, Article 98 appears to suggest that the ICC cannot ask South Africa to arrest Putin unless Russia agrees to waive Putin¡¯s immunity from prosecution, which Moscow would obviously not do.