Encyclopedia
Diplomatic immunity is a form of legal immunity and a policy held between governments, which ensures that
diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country's laws . It was agreed as international law in the Vienna Convention on Diplomatic Relations , though there is a much longer history in international law.
It is possible for the official's home country to waive immunity; this tends to only happen when the individual has committed a serious crime, unconnected with their diplomatic role , or has witnessed such a crime. Alternatively, the home country may prosecute the individual.
History
The sanctity of diplomats has been observed for centuries. Most likely, the immunity of diplomatic staff rises from the immunity of the messengers sent on the battlefield. Before the evolution of the international justice, many wars were considered rebellions or unlawful by one or more combatant sides. In such cases, the servants of the "criminal" sovereign were often considered accomplices and their persons violated. In other circumstances, harbingers of unconsiderable demands were killed as a declaration of war.
Herodotus records that when heralds of the
Persian king
Darius the Great demanded "earth and water" of various Greek cities, the
Athenians threw them into a pit and the
Spartans threw them down a well .
A
Roman envoy was urinated on as he was leaving the city of
Carthage. The oath of the envoy: "This stain will be washed away with blood!" was fulfilled by the
Second Punic War. The arrest and illtreatment of the envoy of
Raja Raja Chola by the Chera King led to the Kandalur War.
As diplomats by definition enter the country under safe-conduct, violating them is normally viewed as a great breach of honour, although there have been a number of cases where diplomats have been killed.
Genghis Khan and the
Mongols were well-known for strongly insisting on the rights of diplomats, and they would often take horrific vengeance against any state that violated these rights. The British Parliament first guaranteed diplomatic immunity to foreign ambassadors in 1709, after Count
Andrey Matveyev, a Russian resident in London, had been subjected by British
bailiffs to verbal and physical abuse.
Modern diplomatic immunity evolved parallel to the development of modern diplomacy. In the seventeenth century European diplomats realized that protection from prosecution was essential to doing their jobs and a set of rules evolved guaranteeing the rights of diplomats. These were still confined to Western Europe, and were closely tied to the prerogatives of nobility. Thus an emissary to the
Ottoman Empire could expect to be arrested and imprisoned upon the outbreak of hostilities between their state and the empire. The
French Revolution also disrupted this system as the revolutionary state and
Napoleon imprisoned a number of diplomats accused of working against France. More recently, the
Iran hostage crisis was a violation of diplomatic immunity. On the other hand, in the
Second World War, diplomatic immunity was upheld and the embassies evacuated through neutral countries.
For the upper class of the 17th, 18th and 19th centuries, diplomatic immunity was an easy concept to understand. Warfare was not between individuals but between their sovereigns, and the officers and officials of European governments and armies often changed employers. Truces and ceasefires were commonplace, along with fraternization between officers of enemy armies during them. When prisoners, the officers usually gave their parole and were only restricted to a city away from the theatre of war. Almost always, they were given leave to carry their personal sidearms. Even during French revolutionary wars, British scientists visited the
French Academy. In such an atmosphere, it was easy to accept that some persons were immune to the laws. After all, they were still bound by strict requirements of honour and customs.
In the nineteenth century the
Congress of Vienna system reasserted the rights of diplomats, and they have been largely respected since then as the European model has spread throughout the world. Nowadays diplomatic immunity, as well as diplomatic relations as a whole, are governed internationally by Vienna Convention on Diplomatic Relations which has been ratified by almost every country in the world.
In modern times, the outbreak of nationalism and egalitarianism has made it difficult for the common man to understand why some should be immune to local jurisdiction. If they are enemy, should they not be interned? If they commit crimes, should they not be prosecuted as everyone else? This view is sometimes criticized with the thought that it disregards cultural differences and the deep distrust between some governments. Would most Americans, for example, think that an American diplomat in People's Republic of China or in
Iran would receive a fair trial if they are charged with say, murder? Most likely, neither would a Chinese or an Iranian believe that their diplomats would be fairly tried by an American jury, especially if relations between the countries were undergoing a crisis. With such profound mutual distrust, diplomatic immunity is intended to provide a means, albeit imperfect, to safeguard diplomatic personnel.
Abuse
In some occasions, diplomatic immunity leads to some unfortunate results; protected diplomats have violated laws of the host country and that country has been essentially limited to informing the diplomat's nation that the diplomat is no longer welcome . Although the diplomat's nation is responsible for carrying out eventual criminal and civil procedures against him or her, this is often neglected. Violations of diplomatic immunity have included espionage in a large number of cases, smuggling of small high value items in a surely much larger number of instances, some troubling child custody law violations,
rape and even murder in a few cases. Historically the problem of large debts run up by diplomats has caused many problems.
The espionage conducted by embassies is actually more a custom than a violation of diplomatic immunity, as it is continuously carried out by all major world powers. A typical position for an intelligence officer is as second press attaché, visa attaché or other position with no clear responsibilities. For example,
Russian president
Vladimir Putin has served as an intelligence officer in this kind of position in the Soviet embassy in Berlin. In the United States, it is a policy of the Foreign Service not to confirm or deny the existence of intelligence personnel in US embassies.
A particular problem with an intermittently amusing side is the immunity of diplomatic vehicles to ordinary
traffic regulations such as prohibitions on
double parking. Occasionally, such problems may take a most serious turn, when disregard for traffic rules leads to bodily harm or death.
- In January of 1997, Gueorgui Makharadze, the deputy ambassador of the Republic of Georgia
- Georgia [i], a sovereign state in the Caucasus region of Eurasia: **Formerly ...
in Washington caused an accident that injured four people and killed a sixteen-year-old girl. He was found to have a blood-alcohol level of 0.15, but released from custody because he was a diplomat. The U.S. government asked the Georgian government to waive his immunity, which they did and Makharadze was tried and convicted of manslaughter by the U.S. and sentenced to seven to twenty-one years in prison. - On December 3, 2004, a guard for the American embassy in Bucharest, Romania
coa_pic=Stema municipiu bucuresti.png|
...
, allegedly drunk, collided with a taxi and killed the popular Romanian musician Teo Peter. Marine Christopher Van Goethen did not obey a traffic signal to stop which resulted in the collision of his Ford Expedition with the taxi the rock star was travelling in. Van Goethen's blood alcohol content was estimated at 0.09 from a breathalyser test, but he refused to give a blood sample for further testing and left for
Germany before charges could be filed in Romania. The Romanian government has requested the American government to lift his immunity, which they have refused to do. The Marine was later cleared by a Court Martial both of the more important charge of manslaughter and of the minor charge of
adultery.
Nations Unies...
Headquarters despite regulations, protests against double-parked diplomatic vehicles have a certain
quixotic quality. Nonetheless, the City regularly protests to the
Department of State about non-payment of parking tickets due to diplomatic status.
- In France, between November 2003 and 2004, there were 2,590 cases of diplomatic cars caught speeding by automatic radars; China alone had 155 violations. In comparison, there were 4,400 speeding violations by French official vehicles, such as police cars, an obviously much greater population than the Diplomatic Corps.
- Some financial institutions will not extend credit to diplomats because they have no legal means of ensuring the money is repaid.
- In January 2006, it was reported that, in London, diplomatic immunity had been used to avoid paying millions of pounds in traffic fines, as well as dodging around GBP1 million in local rates, although some embassies have agreed to settle their bills .
In fiction, diplomatic immunity is sometimes portrayed negatively with criminals with diplomatic papers brazenly committing the most violent crimes and arrogantly waving their immunity about when the heroes try to stop them. In fact, most professional diplomats are representatives of large, powerful nations with a tradition of professional civil service. They are expected to obey regulations governing their behaviour and they suffer strict internal consequences if they flout local laws. Diplomats who disobey minor regulations or break major laws, or disappear with bad debts are in a minority, and they usually come from small, poor, or corrupt countries with no tradition of a professional diplomatic service or of a national civil service. In many of the richest and largest nations of the globe a professional diplomat's career is compromised if he or she disobeys the local authorities or cause serious embarrassment.
Exceptions to the Vienna Convention
Some countries have made reservations to the Vienna Convention on Diplomatic Relations, but they are minor. Most important are the reservation by some Arab nations concerning the immunity of diplomatic bags and non-recognition of Israel. A number of countries limit the diplomatic immunity of persons who are citizens of the receiving country. As nations keep faith to their treaties with differing zeal, also other rules may apply, though in most cases this summary is a reasonably accurate approximation. It is important to note that the Convention does not cover the personnel of international organizations, whose privileges are decided upon on case-by-case basis, usually in the treaties founding such organizations.
Diplomatic immunity in the U.S.
The following applies to the
United States. In general, these rules follow the Vienna Convention, which the U.S. ratified.
Category |
May be arrested or detained |
Residence may be entered subject to ordinary procedures |
May be issued traffic ticket |
May be subpoenaed as witness |
May be prosecuted |
Official family member |
|---|
Diplomatic |
Diplomatic agent |
No1 | No | Yes | No | No |
Same as sponsor |
|---|
Member of administrative and technical staff |
No1 | No | Yes | No | No |
Same as sponsor |
|---|
Service staff |
Yes2 | Yes | Yes | Yes |
No, for official acts. Otherwise, yes2 |
No2 |
|---|
Consular |
Career Consular Officers |
Yes, if for a felony and pursuant to a warrant.2 |
Yes4 | Yes |
No, for official acts. Testimony may not be compelled in any case. |
No, for official acts. Otherwise, yes3 |
No2 |
|---|
Honorary consular officers |
Yes | Yes | Yes |
No, for official acts. Yes, in all other cases |
No, for official acts. Otherwise, yes |
No |
|---|
Consular employees |
Yes2 | Yes | Yes |
No, for official acts. Yes, in all other cases |
No, for official acts. Otherwise, yes2 |
No2 |
|---|
International organization |
International Organization Staff3 |
Yes3 | Yes3 | Yes |
No, for official acts. Yes, in all other cases |
No, for official acts. Otherwise, yes3 |
No2 |
|---|
Diplomatic - level staff of missions to international organizations |
No1 | No | Yes | No | No |
Same as sponsor |
|---|
Support staff of missions to international organizations |
Yes | Yes | Yes |
No, for official acts. Yes, in all other cases |
No, for official acts. Otherwise, yes |
No |
|---|
| 1Reasonable constraints, however, may be applied in emergency circumstances involving self-defense, public safety, or the prevention of serious criminal acts. |
2This table presents general rules. Particularly in the cases indicated,
the employees of certain foreign countries may enjoy higher levels of privileges and immunities on the basis of special bilateral agreements. |
| 3A small number of senior officers are entitled to be treated identically to "diplomatic agents". |
| 4Note that consular residences are sometimes located within the official consular premises. In such cases, only the official office space is protected from police entry. |
References
External links
- from eDiplomat.com:
-
- from Straight Dope
- , a blog
