THE murder – or just “death”, depending on whose version you choose to believe – of Saudi journalist Jamal Khashoggi inside his own country’s consulate in Turkey has put a spotlight yet again on one of the thorniest areas of international law: the immunity which diplomats and their buildings enjoy under international law.

For the Khashoggi case, although by far the most unusual and gruesome in many years, is hardly unique. And the question of what states can or cannot do within the compounds of their embassies in other countries is constantly alive: Julian Assange, the founder of the WikiLeaks website which specialised in publishing secret documents of other countries, has avoided British justice through the simple expedience of living in the Embassy of Ecuador in London for the past six years.

Overall, few rights in international law are as ancient as those of diplomatic immunity. Yet, few are more misunderstood or more abused than the rules and customs which guide the conduct of diplomats and the protection of foreign missions.

Diplomatic immunity, which means the protection against any penalty or legal procedures enjoyed by foreign states, international organisations and their employees, is as old as the existence of states. For instance, ancient Indian epics such as the Mahabharata which date back around 2,500 years refer to messengers or rulers who enjoyed exemption from capital punishment.

In the Middle East, the Prophet Muhammad was particularly insistent on protecting envoys; classical syariah law granted “aman” – the right of safe passage – to foreign envoys and their assistants, and also provided their missions and their property with full protection, including an exemption from all domestic taxes.

And the Mongols under Genghis Khan in the 12th century were famous not only for insisting on the rights of diplomats, but also for inflicting terrible punishment on those who did not treat their diplomats with dignity; Khwarezmia, an empire which ruled large parts of today’s Central Asia and Iran, was invaded by the Mongols in 1219 and ultimately destroyed, largely because it arrested and executed Genghis Khan’s diplomatic envoys.

Most of the diplomatic immunities we know today were codified in written documents in the Europe of the 16th and 17th centuries; it was Hugo Grotius, the eminent Dutch lawyer, who developed the idea of extraterritoriality, the fiction that the land on which an embassy stands is not the territory of the host country, and that the property within that compound cannot be touched or searched.

So, although most of the diplomatic immunity procedures that states apply and respect today are those contained in the Convention of Diplomatic Relations concluded in the Austrian capital of Vienna in 1961, most have emerged almost simultaneously in every culture and civilisation. That such diplomatic rules of engagement appear in almost every age of humankind represents the surest indication that these rules are not just arcane conventions found in some dusty legal tomes, but a necessity, the absolute essence of the conduct between states.

Every country knows that if it disregards the rules and fails to protect foreign diplomats and embassies on its soil, it will soon find its own diplomats and embassies under pressure and it will soon live to regret such behaviour; that is why, paradoxically, the tense decades of the Cold War were also the period during which both the US and the Soviet Union respected diplomatic immunities to the letter, and in the strictest possible way.

Of course, a well-established rule is always liable to be broken, and few international law concepts were as frequently violated as that of diplomatic immunity. There was the case of a Mexican press attache photographed by US security officers while stealing mobile phones from other officials at the Canada-Mexico-US leadership summit in 2008; he was confronted, but escaped justice, claiming diplomatic immunity.

There was also the case of Nigerian diplomats who, back in 1984, captured on the streets of London one of their country’s dissidents and packed him into a wooden crate for shipment back home in a “diplomatic bag”, which is legally exempt from any searches. The dissident was freed at the last minute by an intrepid British Customs officer only because the Nigerians failed to provide the necessary paperwork, but the culprits claimed diplomatic immunity.

Parking fines imposed on foreign diplomats go unpaid by the hundreds of thousands around the world. And there was, of course, the 2009 case of Silviu Ionescu, the Romanian envoy in Singapore who evaded justice in Singapore despite killing one person and seriously wounding two others in an alcohol-fuelled driving accident.

But it’s important to recall that diplomatic immunity does not actually mean legal impunity.

First, not everyone who is a diplomat can actually claim full immunity, and very often, the people who carry diplomatic passports are themselves not aware that their rights may not be as extensive as they thought.

Just ask Dominique Strauss-Kahn, the Frenchman who ran the International Monetary Fund and who thought he could claim immunity from prosecution on a charge of sexual assault in 2011; he couldn’t, because the immunity extended to him applied to the performance of his professional duties, which obviously did not extend to the alleged assault of a hotel chambermaid.

General Augusto Pinochet, who ruled Chile for decades, also discovered that his diplomatic passport was useless when he was arrested in London in 1998; Britain recognises diplomatic immunities only for those actually accredited to the United Kingdom.

And it is usually forgotten that the Romanian Ionescu was convicted of his crimes by his own country, and ultimately died in jail. For while countries are keen to protect their diplomatic immunities, there is nothing to prevent states from punishing those among their diplomats who break laws.

There are also plenty of examples of embassies being used for criminal activities. The French and Spanish embassies in London, for instance, were frequently hotbeds of plots to assassinate British monarchs during the 16th century. London was also the location for one of the most egregious violations in diplomatic history when, in April 1984, Libyan diplomats in the British capital opened fire from the windows of their embassy, killing a British policewoman in the street below.

And there was the 1999 US bombing and destruction of the Chinese Embassy in Yugoslavia, an event which the Americans continue to claim was an accident, but which the Chinese suspect was premeditated; the truth probably lies somewhere in between.

Still, it is a myth that an embassy is foreign soil where a country can do as it pleases. It is not; it’s merely inviolable, but the host country is at liberty to terminate diplomatic relations and, subject to normal property contracts, regain possession of both the building and the territory on which the embassy exists.

That is what the British government briefly considered doing when Assange, the WikiLeaks founder, sought refuge in the Ecuadorian embassy in London in 2012, in order to flee from prosecution for an alleged rape offence; the British could have broken off diplomatic relations, leaving Ecuador in the uncomfortable position of having to vacate the embassy, yet being unable to defend its “refugee” from the clutches of the British law.

But the British wisely rejected that option, partly because they understood the difficult precedents that will create, but also because they knew that seeking refuge in an embassy is not exactly a new phenomenon.

In 1956, Cardinal Joseph Mindszenty, the Catholic primate of Hungary, fled from the communist authorities in his country by seeking refuge in the US embassy, where he remained for the subsequent 16 years. Today, that episode is commemorated by a plaque on the US embassy and regarded as a noble American gesture.

What happened in the Saudi Arabian consulate in Turkey is, of course, horrific. Whichever version one believes, the irrefutable fact is that Khashoggi entered the Saudi embassy in Istanbul and was killed there.

The Saudis first denied he died there, then tried to blame rogue killers, and finally said he died after a fist fight gone wrong.

Turkey is clearly within its rights to demand that those who may be responsible for Khashoggi’s tragic death stand trial. But it is equally clear that, although Saudi Arabia has vowed to put the alleged culprits on trial, Turkish judges won’t be involved.

Still, it is also obvious that Turkey subjected the Saudi consulate to electronic eavesdropping and may have had access to interception devices planted inside the Saudi premises, for otherwise, it would not have had the detailed electronic information about events inside the Saudi diplomatic compound which the Turks now claim to possess.

And that, too, is not exactly the “done thing” in diplomatic rules, although this particular interpretation of the principle of the inviolability of diplomatic missions is most often respected by its breach.

Overall, however, the Khashoggi affair should not serve as a justification for claiming that the rules of international diplomatic behaviour are breaking down.

For the storm of protest which the Saudis are being subjected to and the heavy international pressure brought upon them in the wake of Khashoggi’s disappearance are indications of precisely the opposite.

Diplomatic privileges may sometimes be abused, but the cost of doing so is both very high, and constantly rising. — The Straits Times/Asia News Network