the responsibility of the host country to provide security and protection at embassies;



the extent to which such protection should be extended to all diplomatic and consular personnel and their private residences; and



the question of reciprocity.

Some of the broad principles governing the protection of foreign missions are provided in the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963). An examination of these principles set against comparative cases will help to assess how South Africa measures up in the protection of foreign missions at home and its own missions abroad.

THE VIENNA CONVENTIONS ON DIPLOMATIC AND CONSULAR RELATIONS

The Vienna conventions define foreign missions as foreign embassies which include both the physical property encompassed by the term, as well as the spirit of an ambassadorial mission in terms of diplomatic immunity, which includes embassy personnel. Similarly, the term ‘foreign mission’ covers consular missions. It also encompasses foreign missions such as the various UN agencies and international agencies like the International Committee of the Red Cross (ICRC) and the World Bank.

Article 40 of the 1963 Vienna Convention on Consular Relations specifically obligates the receiving state to "treat consular officers with due respect" and to "take all appropriate steps to prevent any attack on their person, freedom or dignity." This article is similar to article 29 of the Vienna Convention on Diplomatic Relations of 1961. The latter has two additional sentences, namely "the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention" (this is the specific concept of diplomatic immunity, which is not necessarily extended to include consular or international agency personnel). Since this convention did not specify who may not arrest or detain a diplomatic agent, it is therefore accepted to be incumbent upon the host authorities to take all the necessary precautions to protect diplomatic officers. One interpretation of these two clauses in the respective conventions is that it does not mean that ‘special protection’ should be extended to diplomatic and consular officials, above that enjoyed by the citizens of the receiving country. The host government, accepting that foreign governments are sensitive to the treatment accorded to their representatives, should exercise rather greater vigilance in respect of their security and safety, especially in executing the laws of the country and specifically in dealing with police and penal law.²

The ‘protection’ implied by the conventions referred more to the provision of safety and security in times of civil unrest (for instance, the situation which arose in Iran in 1979 when students seized the US embassy in Teheran and held US diplomatic personnel hostage), armed insurrection or mob violence/rioting. The extension of this protection would also include terrorist attacks on foreign missions and the kidnapping or hostage-taking of foreign diplomats. At the time when the two conventions were signed, the high level of crime was not such the issue it became in the 1990s.

However, international responsibility for protecting diplomatic and consular officials remains the host state’s duty and its guilt, rather than innocence, is presumed whenever an attack occurs on either consular or embassy staff.

Furthermore, article 55(1) of the 1963 convention reaffirms the basic territorial sovereignty of the receiving state, except for specific privileges and immunities provided in either of the conventions or in other international agreements. However, diplomatic and consular personnel have a duty to observe the laws and regulations of the receiving state. Both conventions reaffirm the UN Charter’s commitment not to interfere in the internal affairs of the host country.³

A complicating factor in providing protection to foreign missions is the principle of the inviolability of premises, in other words, the premises of foreign missions are treated as if they have territorial integrity and are part of the visitor country, and therefore cannot be occupied or entered. Any rights by the authorities of a host country to search and seizure on the premises of a diplomatic mission are specifically excluded (if they would do so without the permission of the head of the mission, such an action is treated as a foreign invasion and a breach of international territoriality). The term ‘inviolability’ had been used in the 1895 Resolution of the Institute of International Law to denote the duty to "protect, by unusually severe penalties, from all offence, injury, or violence on the part of the inhabitants of the country" (article 3).⁴

In time, the term came to include the idea of ‘ex-territoriality’, in other words, the diplomatic mission’s premises were treated as an integral part of the sending country’s territory with its occupants being subject to the laws of their country of origin. This did not mean that diplomatic staff could act against the laws of the host country when outside the mission premises, although they were immune from the criminal jurisdiction (diplomatic immunity) of the host country.

In addition, the principle of the inviolability of diplomatic and consular archives was universally accepted as customary rule of international law long before the 1961 and 1963 Vienna conventions. In the latter case, consulates are placed under the jurisdiction of diplomatic missions abroad and they would therefore regularly receive diplomatic papers which are in themselves considered to be inviolable.⁵

However, until the 1963 convention, territorial inviolability was usually only extended to diplomatic missions — embassies — and not to consular or other foreign missions. In other words, it was recognised that the status of consuls was not as high and inviolate as that of ambassadors (this ties into the distinction made between the level (grades) of status afforded to ambassadors, chargés d’affaires, first and second secretaries, and others on the diplomatic staff). This distinction arose from the different functions associated with diplomatic (political) and consular missions (economic). The 1963 convention attempted to narrow the gap by accepting a clause dealing with inviolability. However, the 1963 convention was a compromise between conditional or partial inviolability and absolute inviolability. The level of inviolability eventually accepted, was based on precedents as outlined in earlier international agreements, among others, the Harvard Research Draft of 1932 (article 17) which stated that:

"A receiving state shall prevent the invasion of a consular office by its agents of any character, provided such office is used solely for consular purposes; and shall furnish special protection to such office and the property used in connection therewith when necessary to defend them from attacks directed against them because of their official character."⁶

Of particular significance is the phrase "provided such office is used solely for consular purposes." A host state would therefore be justified in entering such premises if it believed that the premises were used for business other than that belonging in a consulate. Of additional significance is the use of the words "furnish special protection" and "when necessary to defend them from attacks directed against them because of their official character." The emphasis is on the form of protection and the ad hoc nature of the provision, and the kind of attack (because of the official status of the premises). Nothing is said about general danger from persistent levels of crime or random violence. Implied here is danger that is overtly political, linked to its consular status.

Other defining precedents were established in particular by the United States-United Kingdom Consular Convention of 1951 in which article 8(4) stipulated that:

"A consular office shall not be entered by the police or other authorities of the territory ... except with the consent of the consular officer or, if such consent cannot be obtained, pursuant to appropriate writ or process and with the consent of the Secretary for Foreign Affairs ... The consent of the consular officer shall be presumed in the event of fire or other disaster or in the event that the authorities of the territory have probable cause to believe that a crime of violence has been or is being or is about to be committed in the consular Office."⁷

The 1963 convention eventually accepted the criteria of exclusivity (immunity hinging upon the exclusive use of the premises for the exercise of consular functions), consent to entry by the consul (or by writ from the appropriate Secretary of Foreign Affairs) and presumed consent for entry in the case of fire and disaster (the latter presumably included ‘crime and violence’). The acceptance of the inviolability clause in the 1963 convention brought consular immunity more or less in line with diplomatic immunity and premises’ inviolability as contained in the 1961 convention.

Article 31(2) of the 1963 convention thus accepted the following in terms of the inviolability of consular premises:

"The authorities of the receiving state shall not enter that part of the consular premises which are used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or his designee or of the head of the diplomatic mission of the sending state. The consent of the head of the consular post may, however, be assumed in the case of fire or other disaster requiring prompt protective action."⁸

In addition, article 31(3) laid down that:

"the receiving state is under a special duty to take all appropriate steps to protect the consular premises against intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity."⁹

Article 31(4) stated that:

"The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for the purposes of national defence or public utility."¹⁰

Articles 31(2-4) are similar to article 22 of the 1961 convention except that subparagraph 3 of article 22 states that the transport of a mission "shall be immune from search, requisition, attachment or execution", even a car is inviolate and cannot be searched for whatever reasons.¹¹

In terms of the person of the consul, article 40 of the 1963 convention states that:

"The receiving State shall treat consular officers with due respect and shall take all appropriate steps [note that the term ‘special’ has not been added here as in the above article] to prevent any attack on their persons, freedom or dignity."¹²

Of particular interest in the above articles is the use of the words "special duty", "to protect ... premises" and "take all appropriate steps to prevent any attack on their person." Again, the definition of ‘attack’ is of importance and the question which goes begging is whether ‘attack’ includes all criminal activity (e.g. car theft, burglary or a mugging), or only a violent physical attack, and whether attack is implicitly limited to political, civil unrest, mob or terrorist attacks. The extent of the protection to be afforded by the host state and appropriate steps to be taken to prevent any attacks are also open to interpretation.

According to Denza:

"the receiving State may be called on, if circumstances make it necessary, to provide a special guard for a diplomat. It is not obliged however to do everything in its power to protect or release an imprisoned diplomat" (if they have been kidnapped).¹³

Denza further states that the appropriate steps with regard to a particular situation must be determined by the sending and receiving states in consultation with each other, since there would be no point in formulating more detailed rules as individual situations may well differ. The appropriate steps would obviously have to take into account an assessment of issues such as threats made against members of a mission, declared intentions or propensities of dissident groups within the receiving state, and the practical capabilities of the receiving state to undertake these steps.¹⁴ Hence, Article 29 provides a realistic and flexible legal framework within which governments may protect diplomats in their country to the best of their ability. article 29 does not require a state in any way to lay down penalties of particular severity for any attack or crime against diplomats in its country. However, article 2 of the United Nations Convention on the Preventing and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 1973 stipulates that states are obliged to make the murder or kidnapping of, or attack on a diplomat or other person specifically protected under international law "punishable by appropriate penalties which take into account their grave nature."¹⁵

In all these articles, the implied emphasis has been on attacks that would appear to be politically motivated. There is no reference to general criminal violence.

One area of possible dispute in the 1963 convention was whether the description of consular premises included the living quarters of consuls situated on the same premises as the consular offices. Although such quarters are often treated in the same way as consular offices, the 1963 convention makes a clear distinction between the two by stating that consular premises are those buildings or parts of buildings and adjacent land used exclusively for the purposes of a consular post. However, the 1961 convention was far more explicit by defining "premises of the mission" as the

"buildings or parts of the buildings and land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission" (Article l(i) — emphasis added).¹⁶

However, of importance is the fact that, although inviolability in article I(i) is only extended to the residence of the head of the mission when attached to the mission compound, article 30 of the 1961 convention states further that:

"the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission" (emphasis added).¹⁷

This can therefore be interpreted to mean all the private residences of all diplomatic staff of a specific foreign diplomatic mission. In addition, inviolability was extended even to a holiday home used for recreational purposes by a diplomat (but inviolability only applied when such a diplomat was in residence).18

Furthermore, article 37 of the 1961 convention states that:

"The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36."¹⁹

In other words, the persons of those accompanying a diplomat are also inviolate and they are entitled to receive protection.

The principle of inviolability also implies that the provision of protection by the host country only extends to the perimeter of a diplomatic mission or consular offices. In other words, guards or police personnel could not patrol or be placed inside the premises or buildings of such missions.

With respect to consular premises in charge of honorary consuls, the 1963 Vienna convention affords them minimal protection. They are simply protected against intrusion, damage, disturbance of the peace, or impairment of dignity. Thus, the authorities of the receiving state may enter the consular premises for any legitimate purpose without the consent of honorary consuls in the same way as they can enter any private residence or building. This was justified on the grounds that honorary consuls, many of whom were nationals of the receiving state, are engaged in private gainful occupations which require close supervision by the state, and that since it is unlikely that state secrets would be entrusted to them, the sending state would be less likely to object to the search of their premises by the authorities of the receiving state.20

In terms of immunity from local criminal jurisdiction, since consular officers are not diplomatic officers and the 1963 convention does not extend this right to them (which is generally accorded to all diplomatic officers), consular officers cannot claim immunity from criminal prosecution. At the same time, however, since consuls represent the sending state in a consular capacity, their official position does entitle them to greater protection and privileges than those accorded to ordinary aliens in the receiving state. In particular, with regard to immunity, it has become accepted that two standards are used in extending such immunity to them, namely whether perpetrated in the execution of an official act and the seriousness of the crime.²¹

It must be remembered that, regardless of the two Vienna conventions, diplomatic and consular relations between individual states may also be regulated by direct agreements governing these relations. For instance, the 1964 Soviet Union-United States Consular Convention introduced the revolutionary concept that consuls were not only immune from local jurisdiction with respect to their official activity, but also had immunity from all criminal jurisdiction of the receiving state. This immunity could only be lifted in the event of an express waiver by the sending state. This particular convention put the respective consular officials on the same level as diplomatic officials as far as immunity from local criminal jurisdiction was concerned. Agreements outside of the Vienna conventions were strongly based on the principle of reciprocity — what applied in the receiving country in terms of relations, treatment and the behaviour of officials was therefore applicable to both countries’ officials when hosted by the other.

In terms of protecting foreign missions in this country at present, reciprocity is of great importance in determining the levels or form of any protection to be provided to any foreign mission hosted here.

PROTECTION AFFORDED TO SOUTH AFRICAN MISSIONS ABROAD

With reference to the protection provided by host countries to South African missions abroad, it would appear that there is a wide discrepancy in the levels and kind of protection provided by host countries.²² There is not always official permanent protection. In some cases where official protection is provided, it appears to fall into the ineffective category. However, in most cases special protection is available to South African missions, but only on request (this is usually only for special occasions like diplomatic dinners, functions or visits on a once-off basis, or for a specific perceived threat). For instance, the Swedish authorities will only provide security measures if specifically requested by a foreign mission, whereas ad hoc safety measures are provided in Hungary where the political circumstances of the mission’s country require such protection. In the case of Israel, the authorities provide armed protection to a specific mission on the basis of risk as perceived by the Israeli authorities themselves, although protection will also be provided on request to any mission.

Protection is also only provided by some governments on the basis of a threat assessment — the gravity of the threat and the potential danger are first evaluated and only if it is felt that there is sufficient danger will protection be afforded. However, requests for special protection were most often only granted on a reciprocal basis, although some missions assume that such a service is granted automatically if requested. In a few countries, no special protection is provided by the host government even if requested. For example, Bulgaria and Hong Kong, the authorities have assessed that there is no threat to the safety of the personnel or residency of the South African mission, and they do not therefore qualify for such a service. In Singapore, no special protection measures are undertaken by the authorities, since crime is virtually non-existent and there is thus no need for such protection. Foreign missions are advised in Singapore that, if they feel the need for protection, they should appoint their own security staff. Furthermore, if requested, the Singapore police will ‘keep an eye’ on the official residences of foreign missions. However, it would appear that very few host countries provide police protection on a permanent basis (stationed at the foreign mission) unless there is evidence of a threat to the safety of a diplomat or diplomatic premises, and then only if requested by the head of the mission.

In most cases, protection refers only to the protection of the chanceries (embassy buildings) or official residences (of the head of the mission). In personnel terms, protection is thus restricted to the workplace of diplomats and the person of the head of the mission. However, in some countries, the protection of foreign missions is facilitated and made easier by the fact that all foreign missions are restricted to only one or two embassy sectors or districts, and foreign missions are thus not spread over an entire capital. Furthermore, some countries do not have the capabilities, infrastructure, facilities or equipment to provide even the most rudimentary protection to foreign missions.

The degree of special protection is obviously determined by the level of threat or risk to the specific mission (as assessed by the authorities). Special protection can take a number of forms:

Permanent posts: These are used when the degree of threat justifies them. They can take the form of a police officer placed in front of a specific building, with possible support provided by a second police officer, usually on a 24-hour basis. A guard room or hut can also be provided for such police officers. Guards could also be placed within the foreign mission’s buildings or waiting areas if requested. Direct communication lines or emergency buttons are usually installed.



Mobile posts: These would usually take the form of patrol cars, motorcycle patrols and foot or street patrols, including regular visits by police officers to embassies and official residences, as well as inspections of the exterior of these buildings and their surroundings.



Backup for permanent and mobile posts: In addition to the above methods, other police vehicles can support these posts and contain any incident which may occur. In certain countries, provision is also made for special rapid reaction mobile units.

Most of these measures are instituted by host governments mainly to deter terrorist or political acts against diplomats, rather than to protect foreign missions from any ongoing criminal activity. The costs for these special protection measures are usually borne by the host country.

Some countries have established special protection units or diplomatic guards (for example, Angola and Egypt). However, the ‘diplomatic police’ are in reality merely used for surveillance purposes and not specifically for the protection of diplomats or the security of missions (Saudi Arabia). In a number of countries, such protection is provided on request by military guards and not the police.

One example of a problematic case of special protection is Egypt where blanket special protection is provided by special guards — who are part of the Egyptian security forces — a unit ostensibly set up to deal specifically with diplomats and foreign missions in Cairo. However, the bigger missions themselves pay these special guards extra monies to ensure that a better calibre and more professional personnel are assigned to their missions. Those missions that decline to do this merely receive local police officers seconded from the nearest police station.

Another problem encountered in this situation has been that some of the special guards arrived for duty in plainclothes and confusion therefore arose whether they were official guards or not. In addition, these plainclothes guards were not visibly associated in the minds of the public (by way of a uniform) as being part of the special guards for providing security at missions. These guards became more of a nuisance factor, since some of them did not always report for duty, sometimes accosted visitors, or asked for food and money. It was therefore a moot point whether they functioned efficiently in terms of security (unprofessional and sloppy work). A further point that has to be raised is that, if the special guards are paid by certain missions, then the missions might as well hire private security guards to do the job in the first instance.

In many of the South African foreign missions, security systems have been installed within embassy compounds at the cost of the South African Department of Foreign Affairs (a private system paid for by South Africans). In Turkey, a police cabin with closed circuit television has been erected at the gates to the South African mission which, although staffed by local police, is paid for by the South African embassy. The Turkish authorities have also provided an armed guard in the waiting room area. These police guards have been provided with two-way radios and are in contact with their headquarters at all times — however, this only applies during the working hours of the mission. Although these police guards are provided free of charge, each police officer is given a monthly food allowance — equal to the rate paid to the head of the mission for his or her domestic servant — as a gesture of goodwill.

At the South African mission in Geneva, Switzerland, the mission building is connected through an alarm system to both the local police station and a private security company (this service is paid for by the mission). In some countries, the buildings where missions are located or where diplomats live, have their own security (for example, in New York and Singapore, most buildings are guarded by private security guards or doormen; the building itself is therefore secure). However, in those countries that provide no police protection or guards, the South African mission has been obliged to contract (and pay for) private security companies to provide 24-hour security at their missions (for example, Zaïre and Zambia).

Some countries provide protection for foreign missions as part of their normal policing activities. For example, in Italy, residencies are not provided with any special protection, but are served by the regular vehicle and foot patrols of the police in the neighbourhoods where the embassies are situated. In contrast to the Italian system, the system in use in the Czech Republic is that each suburb (area) in Prague has a special police ‘protection unit’ that specifically investigates any problems which embassies in the area might report to the police. However, this protection unit does not patrol the streets and neighbourhoods on a regular basis and has to be called out in case of an emergency. In Indonesia, for instance, the special protection unit carries out regular patrols in areas where official residences are situated. Where they are unable to carry out such patrols, the local police in the area are instructed to do so.

In the United States, the State Department has an Office of Foreign Missions with a VIP Protection Unit which will provide protection to foreign missions if specifically requested to do so. However, offices outside Washington have to rely on the local police (usually municipal police) in whose jurisdiction the foreign mission is situated, as a first recourse of protection. This ‘protection’ takes the form of dialling 911 (emergency services) if any immediate problem arises. The VIP Protection Unit also relies on spot checks by the local police (if requested), and permanent protection (by the federal agency responsible) is only provided if the problem is of such a nature that the local police cannot effectively address it. In Washington itself, protection (if requested) is provided by the US Secret Service Uniform Branch Division and the US Diplomatic Security Service. Both these organisations have emergency response teams, similar to the SAPS Special Task Force, which provide security assistance on short notice (the emphasis is on security threats such as assassination, kidnapping and hostage-taking).

In the United Kingdom, the protection of foreign missions is governed by the UK Diplomatic Privileges and Immunities Memorandum issued by the Protocol Department of the Foreign and Commonwealth Office. According to this document the: 

"Security Section of the Protocol Department is responsible, in close liaison with the [London] Metropolitan Police, for the security and protection of foreign diplomats and diplomatic premises; security arrangements for inward VIP visits, both official and private; and security for international conferences."²³

 The Security Section, in fact, liaises directly with the Diplomatic Protection Group (DPG) of the Metropolitan Police and the Special Branch about the level of protection provided to diplomatic missions in London, or personal protection for the head of the mission. The level of protection will depend upon the assessment of the threat by these agencies. In the case of consular offices outside of London, liaison with local provincial police forces is normally conducted by the Home Office (F4 Division) at the request of the Security Section.

In Canada, the Royal Canadian Mounted Police (RCMP) undertake a threat and risk assessment of every foreign mission to determine the level of protection that has to be provided. The RCMP drives past embassies and the homes of ambassadors at least once a day and, if there is a higher political threat, they will do this more often each day. If the threat is deemed to be very high, they may station a RCMP officer at the embassy or residence on a 24-hour basis. In order to assist diplomats, the RCMP recently introduced a special neighbourhood watch system for diplomats. The idea is that the neighbours of diplomats voluntarily participate in the system that functions like any neighbourhood watch system. In addition, the personnel of foreign missions are issued with emergency numbers where the RCMP can be contacted on a 24-hour basis throughout the whole of Canada.

In the Slovak Republic, the protection of foreign missions is the responsibility of the Department for the Protection of Foreign Missions of the Ministry of Home Affairs. This department has an officer on duty 24 hours a day to handle calls, enquiries or emergencies. In addition, officers in plainclothes patrol the residential areas of missions and official residences on foot and in unmarked cars.

In terms of communications, some countries provide special telephone lines that link embassies directly to local police stations. For example, Malaysia has provided so-called ‘hotlines’ (to local police stations) for use by diplomats in cases of emergencies. Diplomats are also encouraged to inform local police stations if they go away for any length of time. Diplomatic missions may also request the installation of a ‘police-box’ system at official residences and chanceries. A ‘letterbox’ is affixed to the perimeter wall near the entrance to the mission property. Such a letterbox contains a register which must be signed by police officers during routine patrols (this system is also used by the Korean authorities in Seoul).

In Hong Kong, the authorities have instituted a system where an emergency button is installed in the office of the head of the mission which, if pressed, immediately alerts the Hong Kong Police VIP Protection Unit. In Japan, an emergency button system has also been extended to the residence of the head of the mission.

In Saint Petersburg and Moscow, the protection of foreign missions is undertaken by the Independent Battalion or Patrol Service on a 24-hour basis, but only on request and after a threat and risk assessment. If protection is provided, it could include the provision of prefabricated steel cubicles at entrances to foreign missions and official residences, but the mission is responsible for the electricity supply. The guards are armed and have a direct telephone connection with their headquarters, but if a direct telephone line is requested between the guards and the mission, this will also be for the account of the mission. The guards do 12-hour shifts and are monitored by patrol cars every four to six hours. In Beijing, police boxes are present on almost every street corner, and each embassy in the diplomatic area has a fulltime guard (working shifts) at the entrance to the embassy compound.

South African diplomatic staff abroad, as well as personnel of other foreign missions, over the past few years, have themselves been victims of armed attacks (Mexico), burglaries (Zambia), muggings (Kenya) and car thefts (Hungary). South Africa is by no means unique in terms of criminal activity impacting diplomatic staff in a host country. One of the countries where state protection of diplomats is lacking, is Nigeria. In Lagos, where an atmosphere of frontier anarchy pervades, armed gangs, operating in groups of 10 or 15, outgun police and have increasingly begun to prey on foreign embassy personnel. According to Sipho George Nene (the South African High Commissioner in Lagos in 1996), embassy staff in Nigeria are seen as targets for money, unlike in most countries where they enjoy special privileges, live in a protected world and are considered ‘off limits’. Robberies at diplomats’ homes are increasingly common, while embassy staff are routinely held up by machine-gun toting robbers. Several embassy vehicles have been hit by automatic weapon fire. The road to Lagos airport is a particular target with nails embedded in flattened oranges being strewn over the road to puncture tyres. Most Western embassy staff now travel in vehicles with special tyres and thick slabs of bullet-proof plexiglass bolted on to doors and windscreens. The lawlessness is not confined to armed criminals. Embassies are also forced to pay bribes merely to keep their telephones working or to obtain other services. In Nigeria, most embassies which can afford to, pay for private security guards and have installed expensive alarm systems.²⁴

THE PROVISION OF PROTECTION TO FOREIGN MISSIONS IN SOUTH AFRICA

One of the issues concerning the protection of foreign missions is whether such protection should be provided by the regular police (as part of their normal crime prevention duties), a special unit of the SAPS, or even a specially trained unit of the SANDF. Furthermore, the question has to be raised whether the SAPS has the manpower and equipment to provide specialised protection by a special unit. It is questionable whether the constant surveillance of each individual diplomat is a realistic option.

In addition, the question arises whether it is the duty and/or responsibility of the South African government to protect foreign missions and diplomats even if there is no reciprocity (if the sending country provides no similar service to the South African mission in its country). If the principle of reciprocity is strictly adhered to, then the level and extent of protection would also be governed by the quality and extent of protection received by South African missions abroad. Furthermore, the principle of reciprocity would mean that any protection service would be selective and exclusive, in other words, it would not be a blanket protection service extended to all foreign missions, but would only be extended to those foreign missions offering similar services in their home countries. However, a possible complication in applying the reciprocity principle would be in those countries where crime is virtually non-existent, no terrorist threat or political risk exists, and there is therefore no need for special protection of the South African mission in this country. Would this exclude such a country’s foreign mission in South Africa from receiving special protection if requested?

Accordingly, in those areas of South Africa where crime and the security situation warrant it, the following special measures might be appropriate in terms of providing protection for foreign missions:

to offer all diplomatic missions 24-hour armed protection or guards (static security) for their chanceries and the residences of heads of missions (if they feel they need it, irrespective of the principle of reciprocity);



to increase motorised and foot patrols in those streets and neighbourhoods (visible policing) where embassies and diplomatic residences are situated;



to provide appropriate means fir 24-hour communications by mobile patrols;



to establish a specialised rapid reaction force on standby for 24 hours a day;



to encourage the installation of burglar proofing, security alarm systems and panic buttons in embassies and official residences which will be directly connected to the closest local police station;



to install closed circuit television camera surveillance in their buildings as an additional option for missions;



to provide a 24-hour telephone contact point to summon emergency assistance; and



to install surveillance cameras at embassies and in streets where embassies are situated.

Additional measures to facilitate the protection of foreign missions could include a current register of the physical addresses of all foreign missions, as well as the residential addresses of their personnel, and the ‘letterbox’ system with police patrols signing a register kept in a box attached to the outside of the premises of foreign missions.

Many of these measures were put forward in an SAPS policy document dealing with the protection of missions. As a result of the concerns generated by the highly publicised attack on the Lebanese chargé d’affaires in May 1996, the attention focused on formulating policy concerning SAPS responses. At the beginning of July 1996, SAPS national commissioner, George Fivaz approved policy regarding security at foreign embassies. The policy document used the word ‘embassies’ and not the more inclusive term ‘missions’. One possible implication is that this excluded consular missions and the offices and personnel of other foreign missions and international agencies from receiving special protection.

The policy document stated, among others, that the SAPS would intensify visible vehicle and foot patrols in the areas where embassy buildings and residences were situated, and would set up channels of communication to station level between the embassies and the SAPS. Furthermore, all liaison between embassies and the SAPS would be channelled through the Section Head: International Liaison Unit of the SAPS’s National Auxiliary Services. If "an intrusion" occurs, the premises are "damaged" a "disturbance of the peace [occurs] at the premises", or there is an "impairment of the dignity of the mission", then the station commissioner of the area where the act took place was to render the necessary assistance to the mission (liaison on such matters still has to take place through the Section Head: International Liaison Unit). If a threat against the mission, a foreign representative or a member of a representative’s family is present, this information should be channelled via the office of the Section Head: International Liaison Unit to the relevant SAPS division for analysis and assessment, whereupon the kind of assistance to be rendered would be decided upon. Assistance could vary from increased visible police patrols to protection of a more permanent nature (for example, fulltime guards or special unit protection). The policy document also encouraged embassies to have security evaluations done on their premises by the SAPS, and pointed out that the SAPS Special Task Unit could also render assistance to embassies in the formulation of contingency plans relating to possible terrorist attacks and hostage situations.

Additional proposals contained in the policy document related to the installation of alarm systems that would electronically link each embassy and residence to the police station in the specific area (however, there is no mention of who would carry the costs of equipment and installation). The possibility of a programme that would make use of accredited SAPS members to render security services at embassies and residences on their rest days was also proposed (again, no mention was made of who would be responsible — if such SAPS members were to be paid extra — for the costs of such a service. Such a service is also seen by private security companies as competition for them and is accordingly resented). The policy document called for the establishment of a method to vet all South African citizens before being employed by foreign missions (possibly, a form of security clearance). In addition, the long-term possibility of establishing a diplomatic protection service was also raised in the document.

It would appear that the SAPS policy document addressed some of the concerns of the diplomatic corps in Pretoria, but whether the proposed measures would fulfil all their needs for security and especially protection from criminal activities (including violence directed at them) will hinge on the practical effectiveness of the services being rendered. Extending more extensive ‘special protection’ measures would necessarily also depend on the ability of the SAPS to provide such a service, and the availability of the necessary manpower and equipment.

It would appear, however, that many of the measures proposed in the 1996 SAPS policy document were partially addressed by the SAPS with the establishment of two embassy protection units at the beginning of 1997, located in Pretoria at the Brooklyn and Sunnyside police stations. These units were responsible for providing protection through additional patrols and more visible policing in the areas where most embassies and ambassadorial residences are situated. These units fell under the crime prevention programmes of each police station. As a result, visible vehicle and foot patrols in the areas where embassy buildings and residences were situated, were intensified, while direct channels of communication to station level between the embassies and the SAPS were established. However, protection for public gatherings or functions at the embassies is usually provided either by the embassy protection units in conjunction with members of the VIP Protection Unit of the SAPS, or by the Public Order Policing Unit in Pretoria.

Furthermore, the VIP Protection Unit provides bodyguard services to international visitors and diplomats who come to South Africa. The VIP Protection Unit will also provide bodyguards to individual ambassadors and diplomatic officials on the basis of an assessed risk to their persons, or if specifically requested. This service does not extend to general diplomatic staff, based on current general perceptions of risks from criminal violence.

However, irrespective of the establishment of the two SAPS embassy protection units, the diplomatic corps in South Africa still felt unsafe as criminal attacks on diplomatic personnel continued. At a crime briefing in March 1998 at the Union Buildings by the former minister for Safety and Security, Sydney Mufamadi, members of the diplomatic corps voiced their concerns and fears regarding crime in Pretoria. At this meeting, the dean of the diplomatic corps in South Africa, Petko Draganov, the Bulgarian ambassador, expressed concern over the lack of visible policing and inefficient follow-up on incidents involving diplomats.²⁵

In May 1998, Ambassador Draganov, in his capacity as dean of the diplomatic corps, wrote in his final letter to the South African Department of Foreign Affairs before returning to his home country that foreign diplomats were increasingly concerned about their safety. He appealed to the South African government to increase patrolling, as well as to take "swift and decisive action" against the perpetrators of attacks on diplomats as a deterrent. Diplomatic officials increasingly felt that they were specifically targeted for attack, since diplomatic vehicle number plates distinguished them from other citizens and made them more vulnerable. According to members of the diplomatic corps, staff at the embassies were victimised by muggings, burglaries or armed attacks at least twice a month. However, South African Foreign Affairs officials did not believe that diplomats were being specifically targeted in an orchestrated campaign. In order to improve the security at the Union Buildings and in the surrounding gardens where many of the muggings of diplomatic staff occurred, a number of improvements were made, particularly the installation of new security lights at a cost of R250 000.

Furthermore, Ben Groenewald, the national head of visible policing of the SAPS, indicated that complaints by diplomats would be dealt with by the two special units at Sunnyside and Brooklyn, while attacks occurring on highways would be dealt with by highway patrol units. However, the station commissioner for Sunnyside, Marietjie Louw admitted at the meeting that manpower shortages had stalled the initiative aimed at protecting the diplomatic community. The two embassy protection units were supposed to have 12 members each dedicated to diplomatic protection, but in reality, only two police officers had been assigned to these units.26 In the context of severe staff shortages, more protection could not be provided.²⁷

Foreign mission staff in South Africa are therefore personally responsible to protect their own lives in public and to protect their private residences and members of their households. Like the rest of the South African public, they have to turn to private security guards and install alarm systems in their homes. Moreover, all diplomats should be trained and informed of general precautions to protect themselves from such incidents such as vehicle hijackings and burglaries at residences. The SAPS cannot be expected to provide personal protection all ambassadors, let alone all staff attached to foreign missions. Nor would it be feasible (in terms of manpower and equipment) to provide a stationary guard at the gate of every embassy, particularly since most criminal attacks on diplomats occur outside of the confines of embassy compounds or diplomatic residences.

CONCLUSION

The current realities of crime in South Africa and the constraints facing the SAPS in terms of manpower and equipment, as well as pressing priorities with regard to combating crime, have several implications for the protection of foreign missions and their personnel in South Africa:

While the SAPS can respond to any threat to the premises and person of all personnel at foreign missions on the basis of need, permanent protection (guards at premises) cannot be provided unless a specific threat to the foreign mission has been identified.



However, if a foreign mission would request additional protection, it would only be supplied on the basis of reciprocity. In other words the level of protection would depend upon the level of protection supplied by the foreign mission’s home country to the South African mission in the country (a protection obligation).



Furthermore, protection would be premised on a threat analysis to establish the level of protection warranted by a threat(s).



For the purposes of threat and security analyses, foreign missions in South Africa can avail themselves of the skills provided by the VIP Protection Unit of the SAPS.



However, the safety of foreign mission personnel in public is ensured by the general policing services that are provided by the SAPS for all citizens of and visitors to the country.



In addition, personal protection has been provided to a certain extent for foreign mission staff by the two embassy protection units in Pretoria, but only in those residential areas where the foreign missions are situated.



Finally, any additional security (armed response and alarm systems) will have to be acquired to by foreign missions themselves by hiring such services directly from private security companies.

 NOTES

In 1995, a survey by the diplomatic corps in South Africa revealed that there were 89 incidents involving members of the diplomatic community, more than half of which were reported for Pretoria.

Some of the more high profile attacks since 1996 were the following:

* May 1996 — an attack on the person of the Lebanese chargé d’affaires in his own home (apparently by a would-be burglar) in Pretoria

* March 1998 — Four Angolan government representatives were robbed of items worth R52 000 when they were stopped by three men posing as police officers

* April 1998 — the Mozambican minister of Works, Roberto White, and members of his staff were attacked by three bogus police officers outside Johannesburg International Airport

* April 1998 — a burglar broke into the Waterkloof, Pretoria residence of the United Arab Emirates’ ambassador and stole appliances before petrol-bombing the house

* May 1998 — Nigerian diplomats from the consulate in Parkwood, Johannesburg, were robbed on the Soweto highway of personal goods valued at R130 000 by people posing as police officers (it was thought that this gang was part of a syndicate of bogus police officers using fake identities to rob tourists and diplomats and already responsible for five attacks on tourists and three on foreign officials since the beginning of 1998)

* May 1998 — Saudi Arabian chargé d’affaires, Soud Zedan, robbed of his vehicle in Alexandra, Sandton

* February 1999 — Canadian high commissioner, James Bartleman, attacked and robbed of personal belongings and a wallet containing R1 000 by an intruder with an electric prod

* September 1999 — callous killing in Johannesburg of the Zimbabwean vice-consul, Madzorera Meki, in front of his 11-year old son, apparently in a hijacking attempt



LTLee, Vienna Convention on Consular Relations, A W Sijthoff, Leyden, 1966, pp 82-83 and 278



Ibid, pp 83-84.



E Denza, Diplomatic law: Commentary on the Vienna Convention on Diplomatic Relations, Oceana, New York, 1976, p 80.



Lee, op cit, p 99.



Ibid, p. 87.



Ibid, p 89.



Ibid, p 277.



Ibid.



Ibid.



Ibid, p 277; Denza, op cit, p 78.



Lee, ibid, p 260.



Denza, op cit, p 137.



Ibid, p 137.



Ibid, p 138



Lee, op cit, pp 93 and 273.



Ibid, p 278.



Denza, op cit, p 143.



Ibid.



Lee, op cit, p 98.



Ibid, p 115.



This analysis is drawn from an unpublished Department of Foreign Affairs document: Protection of South African embassies abroad, May 1996, which is a collection of all the replies from South African missions abroad concerning the kind and extent of protection afforded to them in host countries.



Ibid.



Foreign Service, Diplomatic immunity means less than nothing in lawless Lagos, Sunday Independent, 4 August 1996.



M Granelli, Too scared to walk our city streets, Pretoria News, 7 March 1998.



Ibid; C Russel, Diplomatic corps appeals for more safety, The Star, 28 May 1998.



By the beginning of 1999, the staff complement of the two embassy protection units had been increased to four officers. The Sunnyside unit was responsible for looking after 83 embassies in their area. As a result, a number of embassies had hired private security firms for protection. In response to the continuation of attacks on diplomats in Pretoria, the national commissioner of the SAPS at the time, George Fivaz, promised in February 1999 to provide additional manpower in order to cope with the increasing number of attacks on envoys. B Webb, Boost to SA’s ‘foreign legion’, Pretoria News, 26 February 1999.