Le droit et le fait : deux juristes (Gentili et Zouche) consultés au sujet d’ambassadeurs accusés d’infraction fin xvie-xviie siècle

Résumé 0

The examples of such cases in the history of international diplomatic law are not very numerous and moreover, have generally left no traces in the works by classical authors. However, there are two exceptions: Alberico Gentili (1552-1608) and Richard Zouche (1590-1660), who were living in England where they studied Roman law at Oxford University. In the first case, Gentili was consulted by the English Crown when the so-called ‘conspiracy of Throckmorton’ was discovered by the very capable Sir Francis Walsingham, who was a policeman for Queen Elizabeth. The young Throckmorton was arrested and promptly accused of high treason, because he was supposed to have plotted for the liberation of the former Queen of Scotland, Mary Stuart, a Catholic, with the help of the Spanish ambassador and the French ultra-Catholic, the Duke of Guise. After being tortured, Throckmorton acknowledged his crime and was then executed. Yet, the question of the ambassador of Spain remained open. Consulted on this point, Gentili argued based on an Imperial constitution from 397 by the Emperors Arcadius and Honorius dealing with the crime of high treason. This constitution concluded that the criminal should be punished with death by the justice of his country of residence. However, Gentili thought it more reasonable to expel the ambassador to be sentenced by the jurisdiction of his country, which was the solution chosen. In the second case, Richard Zouche was called in a commission of oyer et terminer to determine how the Portuguese ambassador, who had killed an Englishman in a private battle, should be punished. Zouche published a short treatise in Latin on this question, translated into English in the year 1717: A Dissertation concerning the Punishment of Ambassadors, who trangress the Laws of the Countries where they reside. At the end of this treatise, he concluded with his own opinion. He said an ambassador, when suspected of a crime, could certainly be expelled to his home country and be judged there. However, the brother and the other companions of a foreign ambassador did not have the same privileges as the ambassador and, therefore, could be punished in the country where they committed their crime. Thus, the ambassador’s brother was sentenced to death and executed in England. The question of diplomatic immunity clearly remained unresolved for a long time, even though the execution of the ambassador’s brother raised sharp criticism from Leibniz and later, from Cornelis van Bijnkershoek who observed that such occasions were very rare and always thought of as scandalous. Immunity for the person of the ambassador himself and for the people of his entourage as well was effectively protected from the second half of the eighteenth century. However, international legislation on this question would not occur until 1961, with the Convention of Vienna, in paragraph 29, which ruled that the person of an envoy was inviolable and is never submitted to arrest or imprisonment.