Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
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197402ZU34
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Vol.40 N° 72
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2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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Vol. 40, Nº 72 (2022), 939-958
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 14/09/2021 Aceptado el 08/12/2021
International legal protection of
encroachment on life of representative
of foreign state
DOI: https://doi.org/10.46398/cuestpol.4072.57
Oleksii Humin *
Yaroslav Hretsa **
Vasyl Homonai ***
Omar Phartenadze ****
Andrii Medvid *****
Abstract
Through legal hermeneutics, the article analyzes the
international legal regulation of the protection of a foreign
diplomatic representative, therefore, special attention is paid
to the regulation of diplomatic privileges and immunities. The
need to use the positive experience of states on the introduction
of internal security in diplomatic representations is based, this
is the purpose of the article. It is important that, despite several existing
international legal acts on the protection of diplomatic representations
and their personnel, there is an urgent need to increase their eciency and
eectiveness, in particular for the lling of existing gaps in international
diplomatic law through further codication and development of
international law and, also, to take measures in accordance with this branch
of law against the oending state, strengthening sanctions for violations
by states of the provisions on the privileges and immunities of foreign
diplomatic representations and their personnel. As a result, we consider it
appropriate to take the measures provided for by legislation to eectively
implement the rules of criminal law on the punishment of persons who
have committed crimes against representatives of a foreign State who enjoy
diplomatic immunity.
* Doctor of Law, Professor, Head of the Department of Criminal Law and Procedure of the Educational
and Scientic Institute of Law, Psychology, and Innovative Education of the Lviv Polytechnic National
University. ORCID ID: https://orcid.org/0000-0002-8016-945X
** Doctor of Law, Associate Professor, Professor of the Department of Economic Law of Uzhhorod
National University. ORCID ID: https://orcid.org/0000-0002-7643-3502
*** Doctor of Law, Associate Professor of the Department of Economic Law of Uzhhorod National
University. ORCID ID: https://orcid.org/0000-0002-1479-4329
**** Doctor of Law, Professor, Head of the Department of Law in Public Service Faculty of Law and Social
Sciences of the Batumi Shota Rustaveli State University. ORCID ID: https://orcid.org/0000-0001-
6155-0047
***** Doctor of Law, Associate Professor, Professor of the Department of Theory of State and Law of Lviv
University of Trade and Economics, Director of Scientic-Practical Center for Research and Protection
of Constitutional Rights of a Person, Ukraine ORCID ID: https://orcid.org/0000-0001-9044-6505
940
Oleksii Humin, Yaroslav Hretsa, Vasyl Homonai, Omar Phartenadze y Andrii Medvid
International legal protection of encroachment on life of representative of foreign state
Keywords: protection of a diplomatic representative; public
international law; attack on life; diplomatic mission;
international relations.
Protección jurídica internacional de la vida del
representante diplomático de un Estado extranjero
Resumen
Mediante la hermenéutica jurídica, el artículo analiza la regulación legal
internacional de la protección de un representante diplomático extranjero,
por lo tanto, se presta especial atención a la regulación de los privilegios
e inmunidades diplomáticas. Se fundamenta la necesidad del uso de la
experiencia positiva de los estados sobre la introducción de la seguridad
interna en las representaciones diplomáticas, este es el propósito del
artículo. Es importante que, a pesar de varios actos jurídicos internacionales
existentes sobre la protección de las representaciones diplomáticas y su
personal, existe una necesidad urgente de aumentar su eciencia y ecacia,
en particular, para el allanamiento de las lagunas existentes en el derecho
diplomático internacional mediante una mayor codicación y desarrollo del
derecho internacional y, también, tomar medidas de acuerdo con esta rama
del derecho contra el estado infractor, el fortalecimiento de las sanciones
por violaciones por los estados de las disposiciones sobre los privilegios e
inmunidades de las representaciones diplomáticas extranjeras y su personal.
Como resultado, consideramos apropiado tomar las medidas previstas por
la legislación para aplicar efectivamente las normas del derecho penal sobre
el castigo de las personas que hayan cometido delitos contra representantes
de un estado extranjero que gocen de inmunidad diplomática.
Palabras clave: protección a un representante diplomático; derecho
internacional público; ataque contra la vida; misión
diplomática; relaciones internacionales.
Introduction
The processes of formation and development of the rule of law are
impossible without the formation and development of eective levers of
inuence on socially dangerous phenomena, which entail the onset of legal
consequences. One of such phenomena that the international community
has been facing recently is terrorism, military, ethnic and other conicts,
the problems of counteraction of which do not lose relevance in modern
conditions.
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The need for a criminal law prohibition of the specied crimes is due
in modern conditions not so much their prevalence as the extremely high
degree of their social danger. The crime, which provides for liability for
encroachment on the life of a representative of a foreign state, is dened
by the article 438 of Section XX of its Special Part “Crimes against peace,
security of mankind and international law and order” of the Criminal Code
of Ukraine is not an exception in this list.
However, despite the close attention of the entire world community
to the issue of ensuring the security of individuals and institutions
enjoying international protection, encroachments continue to occur. Such
encroachments are resonant and can seriously undermine international
balance and security. Often such illegal actions are used to create obstacles
to the development of friendly relations between states. The regions of
political instability in the modern world are of particular concern in this
regard.
Diplomatic representations play an important role in establishing
cooperation between the states they represent and the host states. The
eectiveness of their work largely depends on the conditions in which they
work in the host state. One of the most important among such conditions is
the safety of both the representation and its sta. The problem of their proper
protection has long been underestimated due to the sporadic violations of
diplomatic privileges and immunities. At the same time, the strong status
and guarantees of the activity of such representations and individuals are
increasingly subject to illegal inuence, and insecurity on the part of the
host state does not allow the diplomatic representations and its sta to fully
and eciently implement the tasks that are assigned to them.
To protect the premises of diplomatic representations and their sta,
on the one hand, cooperation with the security services of the host country
is deepening, and on the other hand, internal security services and other
subsidiary bodies, which are not directly related to diplomatic activity
and whose status is not regulated by international legal acts, are being
set up at the diplomatic representations themselves (Kobylynska, 2019).
Solving these and other issues that are related to improving the regulatory
framework for the protection of a representative of a foreign state requires
in-depth scientic analysis.
1. Materials and methods
The research methods are chosen considering the purpose and tasks
that are set in the article, its object and subject. The methodological basis of
the work is a comprehensive approach to the consideration of international
legal protection of encroachment on the life of a representative of a
942
Oleksii Humin, Yaroslav Hretsa, Vasyl Homonai, Omar Phartenadze y Andrii Medvid
International legal protection of encroachment on life of representative of foreign state
foreign state. During the study we used, rst, the general provisions of
materialist dialectics and the theory of knowledge; secondly, the provisions
of international humanitarian law and the development of criminal law
doctrine.
The application of an interdisciplinary approach allowed to form the
idea of encroaching on the life of a representative of a foreign state, as a
multifaceted phenomenon that has acquired various forms of manifestations
in the modern conditions. The formal-dogmatic method that is based on the
use of the rules of formal logic for the knowledge of law, served to analyze
the provisions of criminal and international humanitarian legislation in
the part of protection of the rights and legitimate interests of individuals,
which have diplomatic immunity, provide for responsibility for the
relevant illegal acts. The method of induction contributed to the denition
of the substantive features of the concepts of “diplomatic immunity” and
“diplomatic representation”. The method of system analysis has been used
in the research of the provisions of international and national legislation
as a kind of system, as well as to determine strategic directions of its
improvement.
The comparative law method was used to research the provisions of
international humanitarian law, which made it possible to formulate several
suggestions regarding the further improvement of legislation of Ukraine
in this area. The logical-semantic method was used to distinguish and
clarify concepts and terms, to analyze the substantive meaning of certain
legal categories, which are basic in this area of counteraction – extremism,
representative of a foreign state, and diplomatic immunity.
2. Analysis of recent research
Some aspects of the problem of criminal-legal counteraction to the
encroachment on the life of a representative of a foreign state were covered
in the works of such lawyers as: M.G. Andryukhin, O.F. Bantyshev, I.P.
Blyshchenko, M.V. Buromenskyi, A.D. Guliyev, R.M. Dmytrenko, Yu.M.
Kolosov, A.I. Muzyka, V.M. Repetskyi, K.K. Sandrovskyi, L.G. Falayeyeva,
N.I. Shapovalov, М.О. Baimuratov, T.I. Byrkovych, О.S. Konoplianyk and
others. At the same time, it should be noted that in the modern science of
international humanitarian law there is a certain decit of comprehensive
researches on this topic, and the problem of improving the legal regulation
of ensuring the rights and legitimate interests of the representative of a
foreign state remains insuciently studied, which does not reect the needs
of today, when there is an urgent need to develop eective legal mechanisms
of protection of the lives of representatives of a foreign state, adhering to
the principles of functioning of the international security system and norms
of international law.
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Vol. 40 Nº 72 (2022): 939-958
All the above indicates the relevance and importance of the topic that
has been chosen for research, whose purpose is to, based on the analysis of
theoretical and legal principles, international experience and generalizations
of international practice, research the system of international legal
regulation and protection of diplomatic privileges and immunities, to
determine a set of measures to improvement of the regulatory frameworks
of the protection of persons under special international protection.
3. Research and results
General frameworks of international cooperation in the eld of ensuring
the proper functioning of the institution of representation in international
legal relations.
The international community, within the framework of international
organizations, aware of the danger of encroachment on persons enjoying
international protection, tried to create a legal framework, which would
ensure the proper functioning of the institution of representation in
the international legal relations. A certain system of such a regulatory
framework began to take shape after the Second World War.
Modern international law provides for special rights that the host country
grants to diplomatic missions and sta of an accredited state to facilitate
the performance of their functions. Such rights are called diplomatic
immunities and privileges. In this case, immunity means the removal of
a diplomatic mission and its sta from the jurisdiction (criminal, civil,
administrative) and coercive action from the side of the host state, and the
privileges mean the special advantages of international law and benets,
which have been provided to representations and their sta in comparison
to nationals of the host state (Baimuratov, 2001).
Diplomatic privileges and immunities are an important institution of
foreign relations law, which is regulated and protected by a signicant
number of international documents. The most important of these are
the Vienna Protocol of 1815 (Vienna rules) on the classes of diplomatic
representatives, the Aachen Protocol of 1818, the Havana Convention on
consular ocials of 1928, Convention on the privileges and immunities of
the United Nations, 1946, Convention on the privileges and immunities of
the specialized agencies of the United Nations, 1947, Vienna Convention
on diplomatic relations 1961, Vienna Convention on consular relations
1963, Vienna Convention on special missions, 1969, Convention on the
prevention and punishment of crimes against internationally protected
persons, including diplomatic agents, 1973, Vienna Convention on special
missions, 1969, Convention on the prevention and punishment of crimes
against internationally protected persons, including diplomatic agents,
944
Oleksii Humin, Yaroslav Hretsa, Vasyl Homonai, Omar Phartenadze y Andrii Medvid
International legal protection of encroachment on life of representative of foreign state
1973, Vienna Convention on the representation of states in their relations
with international organizations of a universal nature, 1975.
Certain aspects of the legal status of diplomatic representations and their
sta are governed by customary norms, as well as bilateral agreements,
the signing of which is provided for in paragraph b of the art. 47 of the
Vienna Convention of 1961. This paragraph allows states to both limit and
expand diplomatic privileges and immunities in their relations based on the
principle of reciprocity (Verkhovna Rada of Ukraine, 1961).
The specied international regulations establish the general principles
of international cooperation in the eld of preventing and combating
encroachment on the life of a representative of a foreign state, as well
as impose the obligation to promote public awareness of the existence,
cause, seriousness of the specied crimes, the threat, which they pose.
The signicance of these international legal acts in the system of sources
that regulate legal relations that are related to ensuring the security of
the diplomatic mission and its sta should be assessed in the light of the
article 9 of the Constitution of Ukraine, according to which international
agreements, consent to be bound of which has been provided by the
Verkhovna Rada of Ukraine, is part of the national legislation of Ukraine.
Article 19 of the Law of Ukraine “On international treaties of Ukraine”
states that international treaties are applied in the manner that is prescribed
by national law. In addition, if an international treaty of Ukraine establishes
other rules than those that provided for in the relevant act of the legislation
of Ukraine, the norms of the international treaty are applied. Therefore,
acts of anti-terrorist legislation of Ukraine should not contradict the above-
mentioned international agreements, and in case of such contradictions,
priorities should be given to the provisions of international agreements.
4. Analysis of international legal documents governing legal
relations in the eld of prevention and counteraction to
encroachment on the life of a representative of a foreign state
We consider it appropriate to begin the scientic review of the relevant
international instruments with the Convention on the privileges and
immunities of the United Nations of 13 February 1946, which determined
the special status of United Nations (hereinafter – UN) ocials, and which
stated that:
Since article 104 of the Charter of the United Nations provides that the
Organization enjoys in the territory of each of its members such legal capacity as
may be necessary for the performance of its functions and the achievement of its
objectives, as well as whereas the article 105 of the Charter of the United Nations
provides that the Organization shall enjoy in the territory of each of its members
945
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 939-958
such privileges and immunities, which are necessary for the achievement of its
goals, and that representatives of UN members and its ocials also enjoy such
privileges and immunities, which are necessary to independently perform their
functions that are related to the activities of the Organization (Bondar et al., 2010:
168).
Section 18 of the article V, “Ocials” of the present Convention, states
that “United Nations ocials: a) are not liable for what they have said or
written and for all the acts that they have committed as ocials; b) are
exempted from taxation on salaries and emoluments that are paid to them
by the United Nations; c) are released from public service duties; d) are
exempted from immigration restrictions and registration of aliens together
with their dependent wives and relatives; e) enjoy the same currency
exchange privileges as are accorded to ocials of the appropriate rank who
are members of diplomatic missions that are accredited to the appropriate
government; f) enjoy the same repatriation benets that are enjoyed by
diplomats during international crises, with their wives and relatives, who
dependent on them; g) have the right to import duty-free their furniture
and property during their initial occupation in the relevant country”.
In this case, privileges and immunities are granted to ocials in the
interests of the United Nations and not for their personal benet. The
Secretary-General shall have the right and the obligation to abandon the
immunity that have been accorded to any ocial, in cases when, in his view,
immunity impedes the administration of justice, and it may be abandoned
without prejudice to the interests of the United Nations. About the
Secretary-General, the right to abandon immunity rests with the Security
Council (section 20 of Article V of the Convention) (Verkhovna Rada of
Ukraine, 1946).
As a continuation of the specied Convention, on November 21,
1947, the United Nations adopted the Convention on the privileges and
immunities of the specialized agencies, to which the Convention referred:
International Labor Organization; Food and Agriculture UN; UN on issues
of education, science and culture; International civil aviation organization;
International Monetary Fund; International Bank for Reconstruction and
Development; World Health Organization; Universal Postal Union; The
International Telecommunication Union and other agencies that are liaised
with the United Nations in accordance with the articles 57 and 63 of the
United Nations Charter. The ocials of these specialized agencies enjoyed
the same privileges and immunities as the ocials of the United Nations,
however, a separate article VII stipulated cases of abuse of privileges by
these ocials and measures to respond to such abuses (Yemelianov et al.,
2017; Verkhovna Rada of Ukraine, 1946).
946
Oleksii Humin, Yaroslav Hretsa, Vasyl Homonai, Omar Phartenadze y Andrii Medvid
International legal protection of encroachment on life of representative of foreign state
The adoption of the Vienna Convention on Diplomatic Relations of
April 18 (1961), made a signicant contribution to the improvement of
the legislation on diplomatic representation, according to the provisions
of which there are two categories of diplomatic immunities and privileges.
The rst category determines the scope of immunities and privileges, which
apply mainly to the premises of diplomatic representations, the second
category determines their heads and sta, i.e., personal immunities and
privileges.
There are some dierences in the legal status, privileges, and immunities
of the permanent missions of states to international organizations and
diplomatic missions at the level of embassies and missions that are
accredited in other states. However, in any case, the object of the violation
is the generally recognized in international communication privileges and
immunities of these representations and their sta, which are protected by
both international law and domestic law of states.
The most important of these are: the inviolability of diplomatic missions
and diplomatic sta; inviolability of archives, correspondence; immunity
from jurisdiction and possible criminal prosecution of a diplomat;
exemption from certain types of taxes; benets during customs and border
control, etc.
In addition, this Convention sets out the basic terms relating to
diplomatic representation it denes such ocials of the diplomatic corps
as the “head of the representation”, “sta of the representation”, “members
of the sta of the representation”, “members of the diplomatic sta”,
“diplomatic agent”, etc. (article 1 of the Vienna Convention on diplomatic
relations).
The Vienna Convention on diplomatic relations denes the functions
of a diplomatic representation, which include: in the representation of the
accrediting state in the host state; in the protection in the host state of the
interests of the accrediting state and its citizens within that are permitted
by international law; in negotiations with the government of the host
state; in clarifying by all legal means the conditions and events in the host
state and notifying them to the government of the accrediting state; in the
promotion of friendly relations between the accrediting state and the host
state and in the development of their relations in the eld of economy,
culture and science (part 1 of the article 3 of the Convention on diplomatic
relations). Thus, in the part 2 of article 3 of the Convention states that
“none of the provisions of this Convention shall be construed as impeding
the performance of consular functions by a diplomatic representation”.
In view of the theme of the research, the provisions of the article 29 of
the Vienna Convention on diplomatic relations, in which it is proclaimed
that “the person of a diplomatic agent is inviolable. He shall not be liable
947
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Vol. 40 Nº 72 (2022): 939-958
to arrest or detention in any form. The host state should treat him with
due respect and take all necessary measures to prevent any encroachments
on his person, will or dignity”. Similarly, according to the article 30 of the
Vienna Convention on diplomatic relations: “The private residence of a
diplomatic agent uses the same inviolability and protection as the premises
of the representation” (Verkhovna Rada of Ukraine, 1946).
The Vienna Convention on consular relations of 24 April 1963 denes
such terms as “consular ocial”, “consular ocer”, “consular sta” (article
1 of the Convention on consular relations). In addition, the Convention on
consular relations also provided for a wide range of consular functions,
the main of which is the protection in the host state of the interests of the
accrediting state and its citizens (individuals and legal entities) within
the limits permitted by international law (article 5 of the Convention on
consular relations).
The article 41 of the Vienna Convention on consular relations denes
the guarantees of personal inviolability of consular ocials, according to
which “consular ocials are not subject to arrest or pre-trial detention,
other than based on decisions of the competent judicial authority in the
case of committing serious crimes. Except as provided in paragraph 1 of this
article, consular ocers may not be detained or subject to any other forms
of restriction of personal liberty, except for the execution of judgments
which have entered into force”. In addition, the article 31 of the Vienna
Convention on consular relations provides guarantees of the inviolability of
consular posts (Verkhovna Rada of Ukraine, 1963).
The next important step in the systematization of legislation on
international representation was the Convention on special missions of
December 8, 1969, which denes the special regime of such special state
missions. The specied Convention denes such important concepts as
“special mission”, “permanent diplomatic representation”, “head of a special
mission”, “representative of the addressing state in a special mission”,
“members of a special mission”, “members of the sta of a special mission”,
“members of a diplomatic personnel” (the article 1 of the Convention on
special missions).
Guarantees of the inviolability of a person who is a member of a special
mission that is provided for in the article 29 of the Convention on special
missions, where it is stated that “the identity of the representatives of the
sending state in the special mission, as well as the identity of members of
the diplomatic sta of the mission is inviolable. They shall not be liable to
arrest or detention in any form” (Verkhovna Rada of Ukraine, 1969).
A special place in a number of these acts is occupied by the “Convention
for the prevention and punishment of crimes against persons under
international protection, including diplomatic agents”, December 14, 1973,
948
Oleksii Humin, Yaroslav Hretsa, Vasyl Homonai, Omar Phartenadze y Andrii Medvid
International legal protection of encroachment on life of representative of foreign state
which was approved by UN General Assembly Resolution 3166 (XXVIII)
and created a basis for liability for crimes that are aimed against foreign
representations and their sta. The signicance of this document lies
primarily in the fact that the article 1 of this Convention outlines in general
terms the concept of “person, who is enjoying the international protection”,
thus determining the range of potential victims.
Such a person is dened by the 1973 UN Convention: “a) the head of
state, including any member of a collegial body acting as head of state
in accordance with the constitution of the state concerned, the head of
government or the foreign minister who is in a foreign country, as well as
accompanying members of his family; b) any representative or ocial of the
state, or any ocial or other agent of an intergovernmental international
organization, when a crime has been committed against him, his ocial
premises, his dwelling or his vehicles, has the right under international law
to special protection against any attack on his person, liberty and dignity, as
well as members of his family, who are living with him”.
The paragraph 1 of the article 2 of the 1973 UN Convention contains
the general elements of a crime against a person enjoying international
protection: “The deliberate commitment: a) the killing, abduction or
other assault on the person or liberty of a person enjoying international
protection; b) a violent attack on the ocial premises, accommodation or
vehicles of a person enjoying international protection which may endanger
the person or liberty of the latter; c) the threat of any attack; d) attempt of
any attack; e) the acts, as an accomplice to any such attack, are regarded as
an oence under its domestic law by each state party.”
The provision of the paragraph 2 of article 2 of the 1973 UN Convention,
which establishes that “Each state party provides for appropriate penalties
for such crimes, taking into account their grave nature”, has also the
fundamental importance. In this way, the world community demands
that states be held accountable for the above actions (Verkhovna Rada of
Ukraine, 1973).
In our view, the provisions of the article 2 of the 1973 UN Convention
cover various but interrelated issues: rst, the denition of the sphere of
the actions of the Convention by establishing the crimes to which it applies;
secondly, the determination of the competence of the state’s parties regarding
the criminal prosecution and punishment for such encroachments.
An indisputable positive moment is that in 1973, the legal components of
such crimes were determined in paragraph 1 of the art. 2 of the Convention
on the prevention and punishment of crimes against persons, who enjoy
international protection, including diplomatic agents. These include:
killings, abductions or other attacks against a person or the freedom of
a person enjoying international protection; forcible attack on the ocial
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premises, accommodation or vehicles of a person enjoying international
protection, which may endanger a person or his freedom; threats of any
such attack; attempts at any such attack; acting as an accomplice to any
such attack.
This article also denes that the subjective side of the crime is
characterized only by direct intent. In this connection, it should be recalled
that the provision “… regardless of the motive” has been included to the
draft of the Convention by the UN Commission on International Law,
however, these words have been removed from the nal version, which in
some cases may allow the subject of the crime to avoid liability for failure to
prove the existence of the corpus delicti, its subjective features.
It is important to bear in mind that the signing of the 1973 Convention
obliges states parties to include in criminal codes uniformly worded articles
with similar sanctions, which, of course, ensures the coordination of the
activity of states in the ght against these crimes, which must at the same
time be considered as a crime by each state party in accordance with its
domestic law.
Finally, non-participation in the 1961 Convention and the 1973
Convention does not exempt a State from the compliance with proper
conduct regarding foreign diplomats, at least in the light of norms of
customary international law. After all, such actions, violating the norms
of diplomatic law have been recognized in international communication,
contradict the basic principles of modern international law in general
(Verkhovna Rada of Ukraine, 1975; Verkhovna Rada of Ukraine, 1973).
At the same time, despite the important role in the mechanism of
ensuring the safety of persons, which have diplomatic immunity, the
content of the 1973 UN Convention should highlight several shortcomings,
which are rightly noted in the special literature. Thus, for example, scientists
have noted that in the general crime, which is provided for in paragraph
1 of the article 2 of the 1973 UN Convention, there is no indication of
the organization of a violent attack on the victim. In addition, the said
international act does not contain a direct reference to the non-application
of the limitation period, which can signicantly reduce the eectiveness of
criminal counteraction to such crimes (Blishchenko, 1990).
Unfortunately, the UN Convention of 1973 does not require member
states to criminalize at the level of national law such acts as desecration of
the ocial symbols of a foreign state or international organization, as well as
the insult of a person, who enjoy international protection. At the same time,
the insulting actions against these symbols and the victims undoubtedly
harm the interests of international communication and cooperation. In
this regard, we share the position of N.V. Akulova, to improvement of the
criminal law protection of international representative activity, issues of
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Oleksii Humin, Yaroslav Hretsa, Vasyl Homonai, Omar Phartenadze y Andrii Medvid
International legal protection of encroachment on life of representative of foreign state
responsibility for desecration of the ocial symbols of foreign states and
international organizations, as well as for encroaching on the honor and
dignity of foreign representatives, are relevant and require the independent
research (Wood, 1974).
It is ambiguous in scientic circles that the text of the 1973 UN Convention
does not indicate the relationship between the encroachment and the activity
of the victim, with his ocial status. After all, in the process of adopting the
UN Convention of 1973, the representatives of individual states defended
the position about recognition to be insucient of establishment of the fact
of the perpetrator’s awareness of the special international legal status of
the victim, suggesting extending the Convention action only to cases where
there is at least some relationship between the motive for the crime and the
status of the victim.
Opponents of this approach rightly noted possible problems in the
process of proving the motive, as well as the fact that this will reduce the
eectiveness of the analyzed international document. As a result, it is
possible to consider as a convective one almost any crime against a person,
who enjoys international protection, which, according to many scholars,
considers to be unacceptable (Sukharev, 2003).
It should be emphasized that the specied encroachment may cause
signicant damage not only to the international but also to the domestic
national interests of the participating states. The specied international
conventions oblige states to guarantee special privileges to persons and
institutions, which enjoy international protection, as well as to ensure
their security. If the state, having accepted the relevant obligations, does
not care about their implementation, any of the specied encroachments
undermines the authority of its government and deals a serious blow to the
international prestige of the state.
A signicant step in dening beneciaries of international protection
has been taken in the Vienna Convention on the representation of states
in their relations with international organizations of a universal nature,
that was adopted by the UN on March 14, 1975. The term “international
organization of a universal character” includes “the United Nations, its
specialized agencies, the International Atomic Energy Agency and any
similar organization whose membership and responsibility has wide
international nature” in the preamble to this Convention. This means that,
if desired, any regional or subregional organization in its relations with
member states may, with their consent, apply the provisions of the 1975 UN
Convention.
The 1975 UN Convention treats the institution of permanent
representation as “a mission of a permanent nature, which is sent to
represent it in this organization.” Thus, as well as embassies, permanent
951
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representations to international organizations are part of the system of
foreign bodies of foreign relations and are part of the diplomatic service of
the state. After all, they have such a fundamental feature as a representative
character in their foreign activity.
In accordance with the article 28 of the Convention, the person of the
head of the representation and members of the diplomatic sta of the
representation are inviolable. They shall not be liable to arrest or detention
in any form. The host state should treat them with due respect and take all
necessary measures to prevent any encroachments on their person, will or
dignity, as well as prosecute and punish those who have committed such
encroachments (Verkhovna Rada of Ukraine, 1975).
Due to the growing number of casualties and injuries as a result of
deliberate attacks on UN personnel and related personnel, considering that
attacks or other encroachments on personnel, who acts on behalf of the
United Nations cannot be justied and are unacceptable, no matter who
commits them, as well as that UN operations are conducted in the general
interest of the international community, the Convention on the protection of
United Nations personnel and related personnel was adopted on December
9, 1994.
The main grounds for the adoption of this Convention became: an
increase in the number of victims and injuries as a result of deliberate attacks
on UN personnel and related personnel; the impossibility of justifying and
not accepting attacks or other encroachments on personnel acting on behalf
of the UN, by whomever they were carried out; signicant contribution
of UN personnel and related personnel to the spheres of preventive
diplomacy, peacekeeping and humanitarian and other operations; existing
arrangements in the eld of providing security of UN personnel and related
personnel, including steps that were taken in this direction by major UN
bodies; insuciency of existing measures regarding the protection of
UN and related personnel; the need to provide comprehensive support
to facilitate the conduction and implementation of the mandate of UN
operations; the need to immediate take appropriate and eective measures
to prevent attacks on UN and related personnel and to punish those who
have carried out such attacks (Aldanov et al., 2003).
In the context of the 1994 UN Convention, UN personnel include: 1)
persons, who are recruited or sent by the Secretary-General of the United
Nations as members of the military, police, or civilian components of a UN
operation; 2) other ocials and experts, who are seconded by the United
Nations or its specialized agencies, or by the International Atomic Energy
Agency, who are present in ocial status in the area of the UN operation.
“Personnel related with it” means persons: 1) sent by a government or
intergovernmental organization with the consent of the competent UN body;
2) involved by the Secretary-General of the United Nations or a specialized
952
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International legal protection of encroachment on life of representative of foreign state
institution or the International Atomic Energy Agency; 3) persons, who are
sent by a humanitarian non-governmental organization or humanitarian
institution in accordance with an agreement with the UN Secretary-General
or with a specialized institution or the International Atomic Energy Agency
to carry out activity in support of the implementation of the mandate of a
UN operation.
The 1994 UN Convention denes such crimes against UN personnel and
related personnel as intentional implementation: “a) the killing, abduction
or other assault that is directed against a person or the liberty of any
United Nations and related personnel; b) a violent attack on the oces,
accommodation or vehicles of any United Nations and related personnel
which may endanger the person or liberty of such personnel; c) the threats
of any such attack with a view to compelling a natural or legal person to
commit or refrain from taking any action; d) the attempts of any such attack;
and e) the acts, which constitute as complicity in, or attempt to commit, such
an attack, or the organization or issuance of an order to commit such an
attack, are criminalized by each state party in accordance with its national
legislation” (part 1 of the article 9 of the 1994 UN Convention).
The state party in whose territory the crimes have been committed, which
are provided in the article 9 of the Convention on the protection of United
Nations and related personnel, in accordance with the conditions that are
laid down in its national law, in case if it has reason to believe that the
“estimated” perpetrator has left its territory, informs the Secretary-General
of the United Nations and directly or through the Secretary-General to the
state or states concerned of all facts that are related to the committed crime,
as well as provides all available information regarding the identity of the
“estimated” perpetrator.
Each state party that has information about the victims and the
circumstances of the commitment of crime, works to provide it in full and
without delay, in the conditions, which are provided for in its national
legislation, to the Secretary-General of the United Nations and the concerned
state or states. The state party in whose territory the “estimated” perpetrator
is located, if it does not extradite him, refers the case without exception
and without undue delay to its competent authorities for the purpose of
prosecuting in accordance with procedures, that have been established
by the legislation of that state (the article 14 of the UN Convention on the
protection of personnel) (Verkhovna Rada of Ukraine, 1994; Kalganova,
2009).
In summary, we note that in modern conditions, the provisions of the
Convention on the prevention and punishment of crimes against persons,
who enjoy international protection, as well as other international legal
acts, are essential for the international community in view of maintaining
friendly relations between state entities. However, the issue of improving the
953
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eectiveness of combating encroachments on the lives of persons, who have
diplomatic privileges and immunities, for which we see the need for more
decisive and concerted action by the international community, through
mutual interstate legal assistance in connection with criminal proceedings
that have been committed in respect of crimes that are provided by the
Convention.
Prospects of improving the ght against encroachments on the lives of
persons with diplomatic privileges and immunities at the national level. In
general, attacks by individuals or groups on diplomatic representations and
acts of violence regarding their sta, whatever their motives, are common
crimes within the sphere of the action of national criminal jurisdiction.
However, such acts usually pose a threat not only to the cooperation of states,
but also to the international legal order, peace, security of humankind, i.e.,
they acquire the character of a crime of international signicance.
They are called crimes of an international nature, which should be
understood as the actions of an individual who encroaches on the rights
and interests of two or more states, international organizations, individuals,
and legal entities in the modern international practice (Baimutarov, 2001).
Against the background of the adopted international legal acts, to which
Ukraine became a party, and in connection with the proclamation of Ukraine
as an independent democratic state and for the purpose of legal protection
of its sovereignty, constitutional order, internal and external security by the
Law of Ukraine of June 17, 1992, the article, which provided for criminal
liability for a terrorist act against a representative of a foreign state in order
to provoke war or international complications, was changed to article, which
established liability for encroachment on the life of a representative of a
foreign state that committed in order to cause international complications.
The Criminal Code of Ukraine that was adopted by the Verkhovna
Rada of Ukraine on April 5, 2001, which replaced the Criminal Code of
Ukraine of 1960, provided for the liability for encroachment on the life of
a representative of a foreign state by the article 443, which, along with the
articles 437 “Planning, preparing, unleashing and waging an aggressive
war”, 444 “Crimes against persons and institutions with international
protection”, 445 “Illegal use of the symbols of the Red Cross, Red Crescent,
Red Crystal” is included in Chapter XX of the Special Part of the Criminal
Code of Ukraine “Crimes against peace, security of humankind and
international law and order” (Verkhovna Rada of Ukraine, 2001).
Speaking about the object of crimes of Chapter XX of the Special Part
of the Criminal Code of Ukraine, it should be noted that rst time the
UN Commission on International Law distinguished between ordinary
international illegal actions (“public torts”) and extremely serious violations
of international law “international crimes” in the middle of the last century.
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International legal protection of encroachment on life of representative of foreign state
Since the early 1990s, the formation of such a branch of international and
national law as international substantive criminal law has begun. Namely,
serious international crimes have become the main subject of its regulation:
crimes against peace, crimes against humanity and military crimes. It is
accepted to call international criminal law in such a narrow sense universal
in the science (Zelinskaya, 2003; Abashidze et al., 2016).
As a generic object of crimes under the articles 443-446 of the Criminal
Code of Ukraine, we suggest considering the system and order of public
relations that are protected by international law, which ensure the
peaceful coexistence of states, compliance with the rules of international
communication, conduct and resolution of armed conicts, as well as
international guarantees of security of national, ethnic, racial, religious
groups, and humanity. The specic object for the specied crimes should
be considered the international legal order as a state of international
legal relations, which ensures the sustainable development of peaceful
coexistence of states and peoples, productive interstate and interethnic
cooperation that is based on the principles and norms of international law.
The above allows us to formulate the main tasks of international
institutions that ensure international order: maintaining peace and
stability in the world, raising the socio-economic standards of living of all
humankind, humanizing the activity of international and national powerful
institutions, protecting the subjects of international law from unlawful
encroachments.
Persons, who have committed any acts of seizure of diplomatic
representations or consular institutions and violence against persons, who
are under special protection of international law should be prosecuted,
regardless of the motives for committing the crime and the reasons to
which they refer.
Some adjustment is required to determine which ocials may be
victims of the crime, which is provided by the article 443 of the Criminal
Code of Ukraine, the disposition of which denes two categories of such
persons: a representative of a foreign state or another person, who have
international protection. A representative of a foreign state in the person of
heads of foreign states, heads of parliament and government delegations,
persons, who are included in parliamentary and governmental delegations
of foreign states as their members, and who are in the territory of the third
party to participate in interstate negotiations, international conferences
and meetings or with other ocial assignments, heads of diplomatic
representations, heads of consular institutions are also persons who are
under special international protection in the performance of their duties.
Therefore, in the right opinion N.V. Akulova, the above categories of
victims of crime, which is provided by the article 443 of the Criminal Code
955
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of Ukraine, may be combined into one “persons, who have international
protection”, as it has been done in the article 444 of the Criminal Code of
Ukraine: “Crimes against persons and institutions, who have international
protection” (Akulova, 2018: 34).
Also, in accordance with the Convention on the prevention and
punishment of crimes against internationally protected persons, including
1973 diplomatic agents, members of the families of the head of state, the
head of government, the minister of foreign aairs who are in a foreign state
and accompanying them are under special international protection. In view
of this, it seems logical to extend the specied provision to relatives and
family members of all authorized persons who have special international
protection (both representatives of foreign states and international
organizations).
It is a question of inclusion in a circle of victim’s nearest and traditional
“close relatives”. We believe that the list of close relatives that is dened by
the Criminal Procedure Code of Ukraine can be applied in the theory and
practice of international legal relations, which are related to the protection
of persons, who have special international protection.
Conclusions
Summing up, we note that the international community within
international organizations, aware of the danger of encroachments on
persons, who enjoy international protection, created a legal framework
to ensure the proper functioning of the institution of representation
in international legal relations. A certain system of such a regulatory
framework began to take shape in the second half of the XX century. They
are the Convention on the privileges and immunities of the United Nations
of 13 February 1946, the Vienna Convention on Diplomatic Relations of
April 18, 1961, the Vienna Convention on consular relations of 24 April 196,
and the Convention on special missions of December 8, 1969.
It is dicult to overestimate the importance of the listed international
legal acts of the Convention on the prevention and punishment of crimes
against persons, who enjoy international protection, including diplomatic
agents, of 14 December 1973, which created the basis for liability for crimes
regarding the foreign representations and their sta. An important step
in dening beneciaries of international protection has been taken in the
Vienna Convention on the representation of states in their relations with
international organizations of a universal nature, which was adopted by
the UN on March 14, 1975. In addition, the Convention for the protection
of United Nations and associated personnel was adopted on 9 December
1994, which dened a list of specic actions that were understood as crimes
against UN personnel and related personnel.
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International legal protection of encroachment on life of representative of foreign state
The Criminal Code of Ukraine, adopted by the Verkhovna Rada of Ukraine
on April 5, 2001, stipulates the article 443 liability for encroachment on a
life of representative of foreign state in the Section XX of the Special Part of
the Criminal Code of Ukraine “Crimes against peace, security of humankind
and international law”.
The current dynamic development of international relations convincingly
states that the existence of international legal norms in the eld of
diplomatic immunities and privileges is currently insucient. Of particular
importance is the need to improve the international legal framework in
the part of using the positive experience of the practice of states for the
introduction of diplomatic representations of internal security.
Despite a number of available international legal acts about the
protection of diplomatic representations and their sta, we see an urgent
need to increase their eciency and eectiveness, in particular regarding
addressing the available gaps in international diplomatic law through
the further codication and progressive development of norms relating
to international law; taking measures that are provided by this branch of
law regarding the oending state, strengthening sanctions for violations
by states of the provisions concerning the privileges and immunities of
foreign diplomatic representations and their sta; taking measures that are
provided for by national law regarding the eective application of the rules
of criminal law relating to the punishment of persons, who have committed
crimes against representatives of a foreign state, who enjoy diplomatic
immunity.
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www.luz.edu.ve
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Esta revista fue editada en formato digital y publicada
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Vol.40 Nº 72