Diplomatic immunity

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For the Canadian newsmagazine series, see Diplomatic Immunity (TV series).

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 there is a much longer history in international 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 honour our own diplomats' immunity just as scrupulously as we honour theirs."[1]

Originally, these privileges and immunities were granted on a bilateral, ad hoc basis, which led to misunderstandings and conflict, pressure on weaker states, as well as an inability for other states to judge which party was at fault. Codification of the rules and agreements in international conventions to which all could adhere (in the various Vienna conventions) provided standard rules 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).

Contents

[edit] 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.[citation needed] 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" (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.[citation needed] 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[citation needed]. 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[citation needed]. 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[citation needed], 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.

[edit] Abuse

Image:Double parked car with diplomatic tags.jpg
A double parked car with diplomatic tags.

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, the sending state may impose administrative procedures specific to the foreign service or diplomatic mission. 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[citation needed], 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[citation needed] 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 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<ref>[2]</ref>.
  • On December 3, 2004, a guard for the American embassy in Bucharest, Romania, allegedly drunk, collided with a taxi and killed the popular Romanian musician Teo Peter<ref>http://www.vivid.ro/vivid72/pages72/people_in_the_news72.htm</ref>. 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 (relatively) minor charge of adultery.
  • In Ottawa, Ontario, Canada, a Russian diplomat, Andrei Knyazev, was involved in a car accident in January, 2001, that resulted in the death of a pedestrian, reportedly while drunk. The Canadian government requested that Russia waive the diplomat's immunity, although this request was refused. The diplomat was subsequently prosecuted in Russia for involuntary manslaughter, and sentenced to four years in prison[3].
  • In Vladivostok, Russia, U.S. Consul General Douglas Kent was involved in a car accident on October 27, 1998, that left a young man, Alexander Kashin, crippled. Kent refused a blood test in accordance with U.S. Embassy policies, and immunity was not waived; Kent subsequently left the country. Accounts differ as to whether Kent was sober. Although Kent was not prosecuted in a U.S. court, Kashin's lawyers are attempting to file a civil suit in the U.S. Kent has since left the U.S. foreign service.[4]
  • 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.[5]
  • In France, between November 2003 and 2004, there were 2,590 cases of diplomatic cars caught speeding by automatic radars[citation needed]; the People's Republic of 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<ref>Le Canard Enchaîné, March 16 2005</ref>.
  • Some financial institutions will not extend credit to diplomats[citation needed] 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 <ref>[6]</ref>.
  • Diplomats are exempt from duties 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).
  • 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, 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 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 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[citation needed] 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[citation needed] if he or she (or even members of his or her family) disobeys the local authorities or cause serious embarrassment.

[edit] Exceptions to the Vienna Convention

Some countries[citation needed] 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. 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 Attaches.

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 may exist, 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.

[edit] Diplomatic immunity in the U.S.

The following<ref>Legal Aspects of Diplomatic Immunity and Privileges, from the United States Department of State website</ref> 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 No1NoYesNoNo Same as sponsor
Member of administrative and technical staff No1NoYesNoNo Same as sponsor
Service staff Yes2YesYesYes No, for official acts. Otherwise, yes2 No2
Consular Career Consular Officers Yes, if for a felony and pursuant to a warrant.2 Yes4Yes No, for official acts. Testimony may not be compelled in any case. No, for official acts. Otherwise, yes3 No2
Honorary consular officers YesYesYes No, for official acts. Yes, in all other cases No, for official acts. Otherwise, yes No
Consular employees Yes2YesYes No, for official acts. Yes, in all other cases No, for official acts. Otherwise, yes2 No2
International organization International Organization Staff3 Yes3Yes3Yes No, for official acts. Yes, in all other cases No, for official acts. Otherwise, yes3 No2
Diplomatic - level staff of missions to international organizations No1NoYesNoNo Same as sponsor
Support staff of missions to international organizations YesYesYes 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.

[edit] References

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[edit] External links

da:Immunitet (diplomati) de:Politische Immunität es:Inmunidad diplomática fr:Immunité diplomatique it:Immunità diplomatica he:חסינות דיפלומטית pl:Przywileje i immunitety dyplomatyczne ru:Дипломатический иммунитет fi:Diplomaattinen koskemattomuus sv:Diplomatisk immunitet

Diplomatic immunity

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