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Diplomatic immunity
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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 (although they can be expelled). It was agreed as international law in the Vienna Convention on Diplomatic Relations (1961), though the concept and custom have a much longer history. Many principles of diplomatic immunity are now considered to be customary law.
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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 (although they can be expelled). It was agreed as international law in the Vienna Convention on Diplomatic Relations (1961), though the concept and custom have a much longer history. Many principles of diplomatic immunity are now considered to be customary law. Diplomatic immunity as an institution developed to allow for the maintenance of government relations, including during periods of difficulties and even armed conflict. When receiving diplomats—formally, representatives of the sovereign (head of state)—the receiving head of state grants certain privileges and immunities to ensure that they may effectively carry out their duties, on the understanding that these will be provided on a reciprocal basis. As one article put it: "So why do we agree to a system in which we're dependent on a foreign country's whim before we can prosecute a criminal inside our own borders? The practical answer is: because we depend on other countries to honor our own diplomats' immunity just as scrupulously as we honor theirs."
Originally, these privileges and immunities were granted on a bilateral, ad hoc basis, which led to misunderstandings and conflict, pressure on weaker states, and an inability for other states to judge which party was at fault. Various international agreements known as the Vienna Conventions codified the rules and agreements, providing standards and privileges to all states.
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 (as opposed to, say, allegations of spying), or has witnessed such a crime. Alternatively, the home country may prosecute the individual. Many countries refuse to waive immunity as a matter of course; individuals have no authority to waive their own immunity (except perhaps in cases of defection).
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.
Ancient times
During 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 inconsiderable demands were killed as a declaration of war. Herodotus records that when heralds of the Persian king Darius the Great demanded "earth and water" (i.e., symbols of submission) of various Greek cities, the Athenians threw them into a pit and the Spartans threw them down a well (suggesting they would find both earth and water at the bottom) (Hdt. 7.133).
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 ill-treatment of the envoy of Raja Raja Chola by the Chera King led to the Kandalur War.
Pope Gelasius I was the first ever recorded pope to historically enjoy diplomatic immunity, as it is noted in his letter Duo sunt to emperor Anastasius.
In Islamic tradition, a messenger should not be harmed, even if coming from an arch-enemy and bearing a highly provocative or offensive message. A hadith attributes this sunnah to the time when Musaylimah sent to the prophet Muhammad messengers who proclaimed Musaylimah be a Prophet of Allah and the co-equal of Muhammad himself. The incensed Muhammad told them, "I swear by Allah that were it not that messengers are not killed, I would cut off your heads", (????????? :1185). (but it was not his custom, so he did not).
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.
In 1538, King Francis I of France threatened Edmund Bonner—Henry VIII's Ambassador to the French court and later Bishop—with a hundred strokes of the halberd as punishment for Bonner's "insolent behaviour". Though in the event the punishment was not actually inflicted, the incident clearly indicates that European monarchs at the time did not consider foreign ambassadors to be immune from punishment.
The beginnings of modern immunity
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 is universally considered a violation of diplomatic immunity (although the hostage takers did not officially represent the state, host countries have an obligation to protect diplomatic property and personnel). 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. The first "embassies" were not permanent establishments, but actual visits by high-ranking representatives of the sovereign (often their close relatives), or even the sovereign in person. As various permanent representations evolved, usually on a treaty basis between two powers, these also were frequently staffed by relatives of the sovereign or high-ranking nobles.
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, diplomatic immunity continues to provide a means, albeit imperfect, to safeguard diplomatic personnel from any animosity that might arise between nations.
Abuse
The Vienna Convention is explicit that "without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State." Nevertheless, in some occasions, diplomatic immunity leads to some unfortunate results; protected diplomats have violated laws (including those which would be violations at home as well) of the host country and that country has been essentially limited to informing the diplomat's nation that the diplomat is no longer welcome (persona non grata). Diplomatic agents are not, however, exempt from the jurisdiction of their home state, and hence prosecution may be undertaken by the sending state; for minor violations of the law, the sending state may impose administrative procedures specific to the foreign service or diplomatic mission.
Violation of the law by diplomats has included espionage, smuggling, child custody law violations, and even murder: in London in 1984, policewoman Yvonne Fletcher was killed on the street by a person shooting from inside the Libyan embassy. The incident caused a breakdown in diplomatic relations until Libya admitted "general responsibility" in 1999.
Espionage
Minor espionages, or gathering information of host countries are conducted in every embassy. A typical position for an intelligence officer is as second press attaché, visa attaché or other position with no clear responsibilities. In the United States, it is a policy of the Foreign Service not to confirm or deny the existence of intelligence personnel in U.S. embassies.
Car crime
A particular problem 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.
Injury and death
- The deputy ambassador of the Republic of Georgia to the United States, Gueorgui Makharadze, caused an accident in January 1997 that injured four people and killed a sixteen-year-old girl. He was found to have a blood-alcohol level of 0.15, but was 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.
- An American Marine serving his embassy in Bucharest, Romania collided with a taxi and killed the popular Romanian musician Teo Peter on December 3, 2004. Christopher Van Goethem, allegedly drunk, 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 Goethem'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 requested the American government lift his immunity, which it has refused to do. In a court-martial, the marine was acquitted of manslaughter and adultery but was convicted of obstruction of justice and making false statements.
- A Russian diplomat accredited to Ottawa, Canada drove his car into two pedestrians on a quiet residential street in January 2001, killing one and seriously injuring the other. Andrei Knyazev had previously been stopped by Ottawa police on two separate occasions on suspicion of impaired driving. The Canadian government requested that Russia waive the diplomat's immunity, although this request was refused. Knyazev was subsequently prosecuted in Russia for involuntary manslaughter, and sentenced to four years in prison. His appeal of the sentence was denied and he served time in a penal colony.
- An American diplomat stationed in Vladivostok, Russia was involved in a car accident on October 27, 1998, that left a young man, Alexander Kashin, crippled. Consul General Douglas Kent was not prosecuted in a U.S. court. Under the Vienna Convention on Consular Relations of 1963, diplomatic immunity does not apply to civil actions relating to vehicular accidents. However, on 10 August 2006, a U.S. Court of Appeals ruled that since he was using his own vehicle for consular purposes, Kent may not be sued civilly.
United Nations parking violations
In New York City, the home of the United Nations Headquarters (and hence thousands of diplomats), protests against parking violations by 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. Diplomatic missions have their own regulations, but many require their staff to pay any fines due for parking violations. A 2006 study by two economists found that there was a significant correlation between home-country corruption (as measured by Transparency International) and unpaid parking fines; nonetheless, approximately 30 countries (or 20%) had fewer than one unpaid fine per diplomat over a five year period, and 20 had none at all. Six countries had in excess of 100 violations per diplomat.
Other car crime
In France, between November 2003 and 2004, there were 2,590 cases of diplomatic cars caught speeding by automatic radars; the People's Republic of China alone had 155 violations.
Financial abuse
Bad debts
Historically the problem of large debts run up by diplomats has also caused many problems. Some financial institutions will not extend credit to diplomats because they have no legal means of ensuring the money is repaid.
Employer abuse
Diplomatic immunity from local employment and labor law when employing staff from the host country has precipitated abuse. When the employer is a diplomat, the employees are in a legal limbo where the laws of neither the host country nor the diplomat's country are enforceable. There is an inherent conflict of interest, as the diplomat is the chief representative of his country and its laws, and is not forced to obey local law, so that an abusive diplomat employer can act with virtual impunity. Diplomats have ignored local laws concerning minimum wages, maximum working hours, vacation and holidays. The worst abusers have imprisoned the employees in their homes, deprived them of their earned wages, passports and from communication and access to the outside world, abused them physically and emotionally, deprived them of food, and invaded their privacy. In the case of corrupt countries and abusive diplomats, it has been virtually impossible to enforce payment of wages, or any standards whatsoever.
Theft
On April 24, 2008, Mexican press attaché Rafael Quintero Curiel was taped stealing Blackberry PDA units from a White House press meeting room in New Orleans, LA. Curiel made it all the way to the airport before members of the United States Secret Service caught up with him. After denying any wrong doing, he was shown the DVD of the surveillance video. Curiel claimed the incident was accidental, stated his diplomatic immunity, and left the country.
Smuggling
Diplomats are exempt from import duty and tariffs for items for their personal use. In some countries, this has led to charges that diplomatic agents are profiting personally from resale of "tax free" goods. The receiving state may choose to impose restrictions on what may reasonably constitute personal use (for example, only a certain quantity of cigarettes per day). When enacted, such restrictions are generally quite generous (so as to avoid tit-for-tat responses).
Tax avoidance or evasion
Diplomats are not necessarily exempt from paying government-imposed fees when they are "charges levied for specific services rendered." In certain cases, such as London's congestion charge (a daily charge on all cars entering central London), the nature of the fee may lead to disputes, but there is an obligation for the receiving state not to "discriminate as between states"; in other words, any such fees should be payable by all accredited diplomats equally. This may allow the diplomatic corps to negotiate as a group with the authorities of the receiving country. In January 2006, it was reported that the United States owed several million pounds in unpaid congestion charge fees. It was also reported that diplomatic immunity had been used to avoid paying millions of pounds in traffic fines, as well as dodging around £1 million in local rates, although some embassies have agreed to settle their bills.
In fiction and reality
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. An example of this can be seen in the movie Lethal Weapon II; noteworthy is that the official in the film headed a consulate, and would not have benefited from diplomatic immunity, but the more limited consular immunity. In Ghost in the Shell: Stand Alone Complex a hacker is unable to escape Section 9 (a very well trained section of the police force) and resorts to telling them that he is the son of a Canadian ambassador. In fact, Section 9 was well aware of this fact, and thus delayed action until Canada had agreed to allow him to be brought to justice.
In reality, most diplomats are representatives of nations with a tradition of professional civil service, and are expected to obey regulations governing their behaviour and they suffer strict internal consequences (disciplinary action) if they flout local laws. In many nations a professional diplomat's career may be compromised if he or she (or even members of his or her family) disobeys the local authorities or causes serious embarrassment, and such cases are, at any rate, a violation of the spirit of the Vienna Conventions.
The issue of parking tickets (see above) in New York was brought up in fourth season of the fictional TV drama The West Wing in the episode "Arctic Radar". President Josiah Bartlet shouts down the phone, at whom he believes to be the UN Secretary General, advising there are big signs telling diplomats that they cannot park and that they should be towed to Queens, before hanging up. It transpires however that he was most likely talking to a secretary.
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 most 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, other rules may also 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 a case-by-case basis, usually in the treaties founding such organizations. The United Nations system (including its agencies, which comprise the most recognizable international bodies such as the World Bank and many others) has a relatively standardized form of limited immunities for staff traveling on U.N. laissez-passers; diplomatic immunity is often granted to the highest-ranking officials of these agencies. Consular officials (that do not have concurrent diplomatic accreditation) formally have a more limited form of immunity, generally limited to their official duties. Diplomatic technical and administrative staff also have more limited immunity under the Vienna Convention; for this reason, some countries may accredit technical and administrative staff as attachés.
Other categories of government officials that may travel frequently to other countries may not have diplomatic passports or diplomatic immunity, such as members of the military, high-ranking government officials, ministers, and others. Many countries provide non-diplomatic official passports to such personnel, and there may be different classes of such travel documents such as official passports, service passports, and others. De facto recognition of some form of immunity may be conveyed by states accepting officials traveling on such documents, or there may exist bilateral agreements to govern such cases (as in, for example, the case of military personnel conducting or observing exercises on the territory of the receiving country).
Formally, diplomatic immunity may be limited to officials accredited to a host country, or traveling to or from their host country. In practice, many countries may effectively recognize diplomatic immunity for those traveling on diplomatic passports, with admittance to the country constituting acceptance of the diplomatic status.
Diplomatic immunity in the United States
The following chart outlines the immunities afforded to foreign diplomatic personnel residing in the United States.
In general, these rules follow the Vienna Convention and generally apply in other countries as well.
| 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 |
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| Diplomatic | Diplomatic agent | No | No | Yes | No | No | Same as sponsor |
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| Member of administrative and technical staff | No | No | Yes | No | No | Same as sponsor |
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| Service staff | Yes | Yes | Yes | Yes | No, for official acts. Otherwise, yes | No |
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| Consular | Career Consular Officers | Yes, if for a felony and pursuant to a warrant. | Yes | Yes | No, for official acts. Testimony may not be compelled in any case. | No, for official acts. Otherwise, yes | No |
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| Honorary consular officers | Yes | Yes | Yes | No, for official acts. Yes, in all other cases | No, for official acts. Otherwise, yes | No |
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| Consular employees | Yes | Yes | Yes | No, for official acts. Yes, in all other cases | No, for official acts. Otherwise, yes | No |
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| International organization | Diplomatic-level staff of missions to international organizations | No | No | Yes | No | No | Same as sponsor |
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| International Organization Staff | Yes | Yes | Yes | No, for official acts. Yes, in all other cases | No, for official acts. Otherwise, yes | No |
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| 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 |
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