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Malaysia can’t arrest North Korean diplomat, says ex-envoy

 | February 23, 2017

Former Malaysian envoy says diplomats can only be detained if the sending countries revoke their diplomatic immunity, but Malaysia can declare them persona non grata and ask them to leave the country.

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PETALING JAYA: Malaysia cannot arrest the North Korean diplomat wanted for questioning over the murder of Kim Jong Nam as he enjoys diplomatic immunity.

Hyon Kwang Song, a second secretary at the North Korean embassy, can only be questioned or detained by Malaysian police if Pyongyang revokes his immunity.

Former veteran Malaysian diplomat Dennis Ignatius said there was therefore nothing much that Malaysian authorities could do, even if they connect Kwang Song to the murder of Jong Nam, the half-brother of North Korean dictator Kim Jong Un.

Inspector-General of Police Khalid Abu Bakar said police had written to the embassy, requesting to interview Kwang Song and Air Koryo employee Kim Uk Il, 37, who could shed light on the investigations.

He said if the embassy did not cooperate, “we will compel them to do so by issuing arrest warrants for both of them”.

According to foreign news reports, the two men are believed in be holed up in the embassy. They are among seven North Korean men, including four who fled Malaysia on the day of the killing, being sought by police.

Jong Nam is believed to have been murdered by poisoning at the Kuala Lumpur International Airport 2 on Feb 13.

Dennis, a former ambassador to several countries, said the only way for Malaysia to question foreigners with diplomatic immunity was to convince their government to revoke it.

“Only the sending state (in this case North Korea) has the power to revoke this immunity and permit the person concerned to come under the jurisdiction of local authorities,” Dennis told FMT today.

Pyongyang has often invoked diplomatic immunity in protesting Malaysia’s investigation into Jong Nam’s death.

Dennis cited an article under the Vienna Convention on diplomatic conduct, which is explicit in prohibiting the host country from arresting or questioning a diplomat.

Article 29 of the Vienna Convention states: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”

Dennis said, “This means duly accredited diplomats enjoy full and absolute immunity from local jurisdictions and cannot be arrested or detained for questioning for any crime.”

He said given the rare occurrence of countries revoking their diplomats’ immunity, coupled with Pyongyang’s “belligerent response to the Malaysian investigations and their pretty obvious involvement in the assassination”, chances of Malaysian police being allowed to question Kwang Song were highly unlikely.

In contrast, Dennis recalled the decision by Wisma Putra not long ago to revoke the immunity of Mohammed Rizalman Ismail, a diplomat at the Malaysian High Commission in New Zealand, allowing authorities there to charge him for sexual assault in 2014.

“They (New Zealand) had to allow him to leave the country. It was only after Wisma Putra subsequently revoked his immunity that he returned to New Zealand to face trial,” said Dennis.

Still, Dennis said, most countries “generally refuse to revoke the immunity of diplomats even when a crime is committed”.

“In Canada some years ago, a Russian diplomat who was under the influence of alcohol, knocked down and killed a Canadian citizen. Although the Canadians wanted to charge him, Russia refused and he was allowed to leave Canada,” he added.

However, Dennis said, Putrajaya had one option left.

“The only thing that the government can do, under such circumstances, is to declare him persona non grata – a way of saying that the person concerned is no longer acceptable to the host country – and ask him to leave Malaysia within 24 hours.”


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