Diplomatic immunity

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Diplomatic immunity is a form of legal immunity that 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 still 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—who formally represent the sovereign—the receiving head of state grants certain privileges and immunities to ensure they may effectively carry out their duties, on the understanding that these are provided on a reciprocal basis.

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. An international agreement 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 happen only 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. However, 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). Alternatively, the home country may prosecute the individual. If immunity is waived by a government so that a diplomat (or their family members) can be prosecuted, it must be because there is a case to answer and it is in the public interest to prosecute them. For instance, in 2002, a Colombian diplomat in London was prosecuted for manslaughter, once diplomatic immunity was waived by the Colombian government.[1][2]

History[edit]

Ancient times[edit]

The concept of diplomatic immunity can be found in ancient Indian epics like Ramayana (between 3000 and 2000 BC) and Mahabharata (around 4th century BC) where messengers and diplomats were given immunity from capital punishment. In Ramayana, when the demon king Ravana ordered the killing of Hanuman, Ravana's younger brother Vibhishana pointed out that messengers or diplomats should not be killed or arrested, as per ancient practices.

During the evolution of 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 Greek cities, the Athenians threw them into a pit and the Spartans threw them down a well for the purpose of suggesting they would find both earth and water at the bottom, these often being mentioned by the messenger as a threat of siege.

A Roman envoy was urinated on as he was leaving the city of Tarentum. The oath of the envoy: "This stain will be washed away with blood!" was fulfilled during the Second Punic War. The arrest and ill-treatment of the envoy of Raja Raja Chola by the king of Kulasekhara dynasty (Second Cheras), which is now part of modern India, led to a naval war called Kandalur War in AD 994.

Pope Gelasius I was the first pope recorded as enjoying diplomatic immunity, as it is noted in his letter Duo sunt to emperor Anastasius.

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 terrifying vengeance against any state that violated these rights. The Mongols would often raze entire cities to the ground in retaliation for the execution of their ambassadors, and invaded and destroyed the Khwarezmid Empire after their ambassadors had been mistreated.

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 the punishment was not actually carried out, the incident clearly indicates that European monarchs at the time did not consider foreign ambassadors to be completely immune from punishment.

The beginnings of modern immunity[edit]

The British Parliament first guaranteed diplomatic immunity to foreign ambassadors in 1709, after Count Andrey Matveyev, a Russian resident in London, had been subjected to verbal and physical abuse by British bailiffs.

Modern diplomatic immunity evolved parallel to the development of modern diplomacy. In the 17th 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 World War II, diplomatic immunity was upheld and the embassies of the belligerents 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, often close relatives, of the sovereign or even the sovereign in person. As permanent representations evolved, usually on a treaty basis between two powers, they 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 19th century, the Congress of Vienna reasserted the rights of diplomats; and they have been largely respected since then, as the European model has spread throughout the world. Currently, diplomatic relations, including diplomatic immunity, are governed internationally by the 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. 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."[3]

The Diplomatic Relations Act of 1978 (22 U.S.C. § 254a et seq.) follows the principles introduced by the Vienna Conventions. The United States has had a tendency to be generous when granting diplomatic immunity to visiting diplomats, because a large number of U.S. diplomats work in host countries less protective of individual rights. If the United States were to punish a visiting diplomat without sufficient grounds, U.S. representatives in other countries could receive harsher treatment.

In the United States, if a person with immunity is alleged to have committed a crime or faces a civil lawsuit, the State Department asks the home country to waive immunity of the alleged offender so that the complaint can be moved to the courts. If immunity is not waived, prosecution cannot be undertaken. However, the State Department still has the discretion to ask the diplomat to withdraw from her or his duties. Often, the diplomat's visas are canceled; and the diplomat and her or his family may be barred from returning to the United States. Crimes committed by members of a diplomat's family can also result in dismissal.[4]

Exceptions to the Vienna Convention[edit]

Some countries have made reservations to the Vienna Convention on Diplomatic Relations, but they are minor. 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.[5] 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-passer; 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 attaché.

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.

Abuse[edit]

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 they (or even members of their family) disobey the local authorities or cause serious embarrassment, and such cases are, at any rate, a violation of the spirit of the Vienna Conventions.

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, on some occasions, diplomatic immunity leads to some unfortunate results; protected diplomats have violated laws (including those that 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.[6]

Employer abuse[edit]

Diplomatic immunity from local employment and labor law when employing staff from the host country has precipitated abuse. The local staff are employed where local knowledge is needed (such as an administrative assistant, press/PR officer), or as menial staff like a cleaner, maid or mechanic. 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, 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 communication with the outside world, abused them physically and emotionally, deprived them of food and invaded their privacy.[7][8] In the case of corrupt countries and abusive diplomats, it has been virtually impossible to enforce payment of wages or any standards whatsoever. South Africa, for example, was criticised for claiming immunity from labor laws relating to a Ukrainian domestic worker at the residence of the South African ambassador to Ireland in Ireland.[9] In Finland, a Philippine maid escaped from an embassy of an unidentified Asian country, reported being held in conditions approaching slavery: she was forced to work from 7 am. to 10 pm., 7 days a week, and the ambassador's children were permitted to hit her. On grounds of diplomatic immunity, no charges could be filed.[10]

In December 2013, in the United States, Indian consular official Devyani Khobragade was detained, hand-cuffed, strip searched, DNA swabbed and held in a federal holding cell in New York. The diplomat was arrested on charges relating to allegations of non-payment of minimum/prevailing wage (as per US laws) and for fraudulently lying about the wages to be paid on a visa application for her domestic worker. India registered a strong protest and initiated a review of privileges afforded to American consular officials in India.[11]

The American Civil Liberties Union filed an amicus brief in Swarna v. Al-Awadi to argue that human trafficking is a commercial activity engaged in for personal profit, which falls outside the scope of a diplomat’s official functions, and therefore diplomatic immunity does not apply.[12]

Vehicular[edit]

A particular problem is the difficulty in enforcing ordinary traffic regulations such as prohibitions on double parking. For example, the Autobahn 555 in Cologne, Germany was nicknamed the "Diplomatenrennbahn" (Diplomatic Raceway), back when Bonn was the capital of West Germany, because of the numerous diplomats that used to speed through the highway under diplomatic immunity. Certain cities, e.g., The Hague, have taken to impounding such cars rather than fining their owners. Diplomats' status does not guarantee the release of impounded cars.

This also includes parking violations. In New York City, the home of the United Nations Headquarters (and hence thousands of diplomats), the city regularly protests to the Department of State about non-payment of parking tickets because of 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: Kuwait, Egypt, Chad, Sudan, Bulgaria and Mozambique.[13]

In cities that impose a congestion charge, the decision of some diplomatic missions not to furnish payment has proved controversial. In London, embassies have amassed approximately £58 million in unpaid charges as of 2012, with the American embassy comprising approximately £6 million and the Russian, German and Japanese missions around £2 million each.[14][15]

Financial[edit]

Historically, the problem of large debts run up by diplomats has also caused many problems. Some financial institutions do not extend credit to diplomats because they have no legal means of ensuring the money is repaid. Local citizens and businesses are often at a disadvantage when filing civil claims against a diplomat, especially in cases of unpaid rent, alimony, and child support.

Rents[edit]

The bulk of diplomatic debt lies in the rental of office space and living quarters. Individual debts can range from a few thousand dollars to $1 million in back rent. A group of diplomats and the office space in which they work are referred to as a diplomatic mission. Creditors cannot sue missions individually to collect money they owe. Landlords and creditors have found that the only thing they can do is contact a city agency to see if they can try to get some money back. They cannot enter the offices or apartments of diplomats to evict them because the Foreign Sovereign Immunities Act says that "the property in the United States of a foreign state shall be immune from attachment, arrest and execution" (28 U.S.C. § 1609). This has led creditors who are owed money by diplomats to become more cautious about their renters and to change their rental or payment policies.

Alimony and child support[edit]

The issue of abusing diplomatic immunity in family relations, especially alimony and child support, has become so widespread that it prompted discussion at the 1995 U.N. Fourth World Conference on Women, in Beijing. Historically, the United Nations has not become involved with family disputes and has refused to garnish the wages of diplomats who owe money for child support, citing Sovereign Immunity. However, in September 1995, the incumbent head of Legal Affairs for the United Nations acknowledged there was a moral and legal obligation to take at least a partial responsibility in family disputes. Fathers working as diplomats who refused to fulfil their family-related financial duties were increasing in numbers in the United Nations: several men who had left their wives and children were still claiming U.N. dependency, travel, and education allowances for their families even though they are no longer supporting those families.[16]

Taxes and fees[edit]

Diplomats are exempt from most taxes, but not from "charges levied for specific services rendered". In certain cases, whether a payment is or is not considered a tax may be disputed, such as central London's congestion charge. In August 2009, it was reported that the Government of the UK believed the United States owed £3,500,000[17] in unpaid congestion charge fees.[18] It was reported in 2006 that the UAE embassy had agreed to pay their own accumulated charges of nearly £100,000.[19]

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.

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.

Other[edit]

Disputes and incidents concerning diplomatic immunity[edit]

Diplomatic immunity in the United States[edit]

The following chart outlines the immunities afforded to foreign diplomatic personnel residing in the United States.[63] In general, these rules follow the Vienna Convention (or the New York Convention for UN officials) and apply in other countries as well (with the exceptions of immunities for United Nations officials, which can vary widely across countries based on the 'Host Country Agreement' signed between the UN and the host country, whereby additional immunities beyond those granted by the New York Convention may be established).

CategoryMay be arrested or detainedResidence may be entered subject to ordinary proceduresMay be issued traffic ticketMay be subpoenaed as witnessMay be prosecutedOfficial family member
DiplomaticDiplomatic agentNo[a]NoYesNoNoSame as sponsor
Member of administrative and technical staffNo[a]NoYesNoNoSame as sponsor
Service staffYes[b]YesYesYesNo, for official acts. Otherwise, yes[b]No[b]
ConsularCareer consular officersYes, if for a felony and pursuant to a warrant.[b]Yes[c]YesNo, for official acts. Testimony may not be compelled in any case.No, for official acts. Otherwise, yes[d]No[b]
Honorary consular officersYesYesYesNo, for official acts. Yes, in all other casesNo, for official acts. Otherwise, yesNo
Consular employeesYes[b]YesYesNo, for official acts. Yes, in all other casesNo, for official acts. Otherwise, yes[b]No[b]
International organizationDiplomatic-level staff of missions to international organizationsNo[a][e]No[e]YesNo[e]No[e]Same as sponsor
International organization staff[d]Yes[d]Yes[d]YesNo, for official acts. Yes, in all other casesNo, for official acts. Otherwise, yes[d]No[b]
Support staff of missions to international organizationsYesYesYesNo, for official acts. Yes, in all other casesNo, for official acts. Otherwise, yesNo

Notes and references[edit]

Notes[edit]

  1. ^ a b c Reasonable constraints, however, may be applied in emergency circumstances involving self-defense, public safety, or the prevention of serious criminal acts.
  2. ^ a b c d e f g h i This 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.
  3. ^ Note that consular residences are sometimes located within the official consular premises. In such cases, only the official office space is protected from police entry.
  4. ^ a b c d e A small number of senior officers are entitled to be treated identically to "diplomatic agents".
  5. ^ a b c d If the international organisation is located in the country of the staff member's nationality, exemption only extends to official acts.

References[edit]

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Further reading[edit]

External links[edit]