A Kiwi was charged with attempting to make an intimate visual recording at New Zealand's embassy in Washington DC during July last year. Photo / File
A Kiwi was charged with attempting to make an intimate visual recording at New Zealand's embassy in Washington DC during July last year. Photo / File
A Kiwi accused of a crime inside the New Zealand embassy in Washington DC raises questions of international law and the general issue of diplomatic immunity, experts say.
Last night the Herald broke the news that a New Zealand citizen has been charged after allegedly trying to make an intimate visual recording of another person at the diplomatic building in the American capital between July 26 and July 28 last year.
Appearing in the Auckland District Court on Monday for the first time, the person was granted interim name suppression before being remanded on bail to reappear later this month.
Associate Professor Treasa Dunworth, an expert in international law at the University of Auckland, said New Zealand's criminal jurisdiction would apply because of where an alleged act occurred or who the accused was.
Speaking generally, and not about this specific case, Dunworth said that if a New Zealand diplomat was to be accused of offending in a public space in another country it would come under New Zealand legislation.
"New Zealand's criminal law asserts 'extra territorial' jurisdiction in respect of a number of crimes and over certain classes of people," Dunworth explained.
"The reason the US courts don't have jurisdiction is due to immunity – in the same way as New Zealand courts would not have jurisdiction should something like this happen within the US embassy here."
However, she added that when a person or incident is covered by diplomatic immunity it does not mean the alleged perpetrator "gets away with it", but rather that the host country's courts simply don't have jurisdiction.
"That's why there needs to be corresponding extra-territorial NZ legislation," she said.
A street view of the Embassy of New Zealand in Washington DC. Image / Google
The University of Waikato's professor Alexander Gillespie also told the Herald there is a misconception that embassies and their territory are sovereign property.
"The New Zealand embassy in Washington is not a little corner of New Zealand," the international law researcher said.
"That is a historic idea that was largely done away with after WWII."
However, Gillespie said, embassies are "inviolable".
He explained this meant an embassy cannot be entered or inspected without the consent of that country's government.
"If this person was a protected person – say a diplomat – then yes, as they have their own immunity, they will be brought back to New Zealand for trial and it would not be done in America."
Gillespie said he had not heard of such a case involving a New Zealander before, but said if the accused is a protected person their government will "often pull them out quickly before facing local justice".
Previous cases
Last year, an American diplomat wanted by police after an incident in Lower Hutt was hurriedly removed by the US government.
"If it's not a protected person, it really is quite unique," Gillespie said of the Washington allegations.
"Normally, a person would be charged with an offence under the law of the country at hand, tried, sentenced and then serve their time in jail, and/or deported back to their home country."
The Ministry of Foreign Affairs and Trade (MFat) and other government ministries directed Herald questions about what has happened in Washington to police, who said a person had been charged in relation to "an off-shore matter".
New Zealand's Ambassador to the United States is Tim Groser and the Herald has also sought comment from the embassy.
New Zealand's Ambassador to the United States Tim Groser. Photo / Mark Mitchell
In 2016, New Zealand lifted diplomatic immunity from an official accused of pushing Korean policemen and kicking their patrol car in Seoul.
The American diplomat wanted by police here last March claimed diplomatic immunity and left the country without being charged.
He was later named as US embassy attache Colin White.
The US refused to waive his immunity and MFat asked the US to withdraw him from his post.
Kuwait also removed a high-ranking diplomat from New Zealand as police pursued a prosecution against the man for allegedly assaulting a woman in central Wellington during 2015.
The accused was reported to be ambassador Ahmed Bader Razouqi.
But in 2016, Malaysian diplomat Muhammad Rizalman bin Ismail was sentenced to nine months' home detention after he broke into a Wellington woman's home half-naked and defecated outside her home.
The military attache left New Zealand in 2014 while facing attempted rape charges.
He was extradited from Malaysia in October 2015 and pleaded guilty to indecent assault.
Ismail has since been deported from New Zealand after serving his sentence.
Malaysian diplomat Muhammad Rizalman bin Ismail was sentenced to home detention after he broke into a Wellington woman's home. Photo / Pool
After last year's general election, part of the briefing for incoming Minister of Foreign Affairs Winston Peters discussed diplomatic immunity.
The Vienna Convention said diplomats and their premises are provided protection to enable them to act without fear of coercion or harassment by the host country.
This includes immunity from police questioning, arrest or detention, and civil or criminal prosecution.
The paper said MFat was clear with all New Zealand diplomatic and consular staff and their families that they are expected to act in accordance with the law of the country they are stationed in.
"Given this, New Zealand policy is to waive diplomatic immunity if a foreign government requests this, unless there is a particular reason not to do," the briefing said.
