Diplomatic immunity is a principle of international law by which certain foreign government officials are recognized as having legal immunity from the jurisdiction of another country. It allows diplomats safe passage and freedom of travel in a host country, and affords almost total protection from local lawsuits and criminal prosecution.
Diplomatic immunity is one of the oldest and most widespread practices in international relations; most civilizations since antiquity have granted some degree of special status to foreign envoys and messengers. It is designed to facilitate relations between states by allowing their respective representatives to conduct their duties freely and safely, even during periods of political tension and armed conflict. Moreover, such protections are generally understood to be reciprocal and therefore mutually beneficial.
As a longstanding and nearly universal concept, diplomatic immunity has long been considered customary law; however, it was traditionally granted on a bilateral, ad hoc basis, leading to varying and sometimes conflicting standards of protection. Modern practices of diplomatic immunity have largely conformed to the 1961 Vienna Convention on Diplomatic Relations, which formally codified the legal and political status of diplomats, and has been ratified by the vast majority of sovereign states.
Diplomats may be declared persona non grata and expelled, although not prosecuted. A foreign official's home country may waive immunity and allow prosecution, typically if the official was involved in a serious crime unrelated to their diplomatic role (such as vehicular homicide, as opposed to, for example, allegations of spying). However, many countries refuse to waive immunity as a matter of course, and diplomats have no authority to waive their own immunity (except perhaps in cases of defection). Alternatively, the home country may prosecute the diplomat on its own accord or at the behest of the host country.
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History
Prior to modern period
The concept of diplomatic immunity can be found in ancient Indian epics like Ramayana and Mahabharata, 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, 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 Xerxes 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. However, even for Herodotus, this maltreatment of envoys is a crime. He recounts a story of divine vengeance befalling Sparta for this deed.
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 Pyrrhic War.
Gregory of Tours recorded that Frankish envoys sent from King Childebert II to the Byzantine emperor Maurice were killed in Carthage by the prefect of the city, after one of the Franks had murdered a merchant. After Emperor Maurice heard about this, he ordered for several Carthaginians to be arrested and sent to Childebert for judgment on account of what happened to his envoys.
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 the naval Kandalur War in AD 994.
The Quran and the Sunnah have numerous references to protection and immunity of diplomats. The Islamic prophet Muhammad sent and received envoys and strictly forbade harming them. This practice was continued by the Rashidun caliphs who exchanged diplomats with the Ethiopians and the Byzantines. This diplomatic exchange continued during the Arab–Byzantine wars.
16th–19th century
The British Parliament first guaranteed diplomatic immunity to foreign ambassadors under the Diplomatic Privileges Act in 1709, after Count Andrey Matveyev, a Russian resident in London, was 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 his state and the empire. The French Revolution also disrupted this system, as the revolutionary state and Napoleon imprisoned numerous diplomats who were 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 are obligated to protect diplomatic property and personnel. On the other hand, during World War II, diplomatic immunity was upheld and the embassies of the belligerents were 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 by 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 a status of hostilities not between individual states but between their sovereigns, as well as the officers and officials of European governments, and armies often changed employers. Truces and ceasefires were commonplace, as was the fraternization between officers of opposing armies. If officers were taken prisoner, they 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 the 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.
Modern era and Vienna convention
In the 19th century, the Congress of Vienna reasserted the rights of diplomats; 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 1961 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."
During the 18 April 1961 Vienna Convention, the Holy See was granted diplomatic immunity to its foreign ambassadors as well.
In the United States, the Diplomatic Relations Act of 1978 (22 U.S.C. § 254a et seq.) follows the principles introduced by the Vienna Conventions. The United States tends to be generous when granting diplomatic immunity to visiting diplomats, because a large number of US diplomats work in host countries less protective of individual rights. If the United States were to punish a visiting diplomat without sufficient grounds, US representatives in other countries could receive harsher treatment. 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 right to expel the diplomat. In many such cases, the diplomat's visas are revoked, and they and their family may be barred from returning to the United States. Crimes committed by members of a diplomat's family can also result in dismissal.
Exceptions to the Vienna Convention
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. 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.
UN organisations
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 UN 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 a member of technical or administrative staff as an attaché.
Others
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. For the US military, official passports can be used for work related travels only. 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. However, this is not universal, and diplomats have been prosecuted and jailed for crimes committed outside the country they are accredited to.
As a result of their title, diplomats are exempt from being prosecuted by the state in open court when they are suspected to be guilty of a crime. Not only are these agents free from the criminal jurisdiction of the state, they are also immune from administrative and civil jurisdiction. This applies for most scenarios; however, there are some exceptions when the diplomatic immunity is subject to waiver.
Any events that are associated with individual stationary property in the land of the receiving State, with the exception of whether or not he is directed to do so for a plan.
Any events with regards to a diplomat serving in another role from another State, including heir, inheritor of a will, executor, administrator.
Any activity by a diplomat, in the receiving State, that is related to any professional or commercial operations beyond the scope of his directed responsibilities.
Uses and abuses
In reality, most diplomats are representatives of nations with a tradition of professional civil service; they are expected to obey regulations governing their behaviour and suffer severe disciplinary action if they flout local laws. In many nations, a professional diplomat's career may be compromised if they (or members of their family) disobey the local authorities or cause serious embarrassment. 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, 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, money laundering, tax evasion, making terrorist threats, slavery, child solicitation, and murder.
Offences against the person
On-duty police officer Yvonne Fletcher was murdered in London in 1984, by a person shooting from inside the Libyan embassy during a protest. The incident caused a breakdown in diplomatic relations until Libya admitted "general responsibility" in 1999. The incident became a major factor in Prime Minister Margaret Thatcher's decision to allow President of the United States Ronald Reagan to launch the US bombing of Libya in 1986 from American bases in the United Kingdom.
In 1987, the Human Resources Administration of New York City placed 9-year-old Terrence Karamba in a foster home after his elementary school teachers noticed suspicious scars and injuries. He and his 7-year-old sister, who was also placed in city custody, told officials the wounds had been inflicted by their father, Floyd Karamba, an administrative attaché at the Zimbabwean Mission to the UN. No charges were filed, as Karamba had diplomatic immunity.
In February 1999 in Vancouver, British Columbia, Canada, Kazuko Shimokoji, wife of the Japanese Consul-General, showed up at the emergency department of a city hospital with two black eyes and a bruised neck. She told doctors that her husband had beaten her. When local police questioned her husband, Mr. Shimokoji said, "Yes, I punched her out and she deserved it", and described the incident as "a cultural thing and not a big deal". Although an arrest warrant was issued, Mr. Shimokoji could not be arrested due to his diplomatic immunity. However, his statement to the police was widely reported in both the local and Japanese press. The subsequent public uproar prompted the Japanese Ministry of Foreign Affairs to waive Mr. Shimokoji's immunity. Though he pleaded guilty in Canadian court, he was given an absolute discharge. Nonetheless, he was recalled to Japan where he was reassigned to office duty and had his pay cut.
In 2002, a Colombian diplomat in the United Kingdom was prosecuted for manslaughter once diplomatic immunity was waived by the Colombian government.
In November 2006 in New York City, Fred Matwanga, Kenyan diplomat to the UN, was taken into police custody by officers responding to reports that he had assaulted his son; he was released after asserting diplomatic immunity.
In 2011, Turkish president Recep Tayyip Erdoğan and his team started fighting with UN officials at the United Nations Headquarters. The then secretary general, Ban Ki Moon, soon ran over and apologised to Erdoğan.
Theft
In April 2021, two Pakistani embassy employees in South Korea were caught shoplifting in Seoul. They were caught stealing $1.70 worth of chocolate and a $10 hat. The case was closed owing to their diplomatic immunity.
Smuggling
Diplomats and officials involved in drug smuggling have benefited from diplomatic immunity. For example, a Venezuelan general wanted in the United States on drugs charges was arrested in Aruba only to be released after the Venezuelan government protested his diplomatic immunity and threatened sanctions if Aruba did not release him.
In December 2014, after their immunity was waived by Gambia, Gambian diplomats were found guilty by Southwark Crown Court of London for selling tax-free tobacco from the Gambian embassy in the United Kingdom. The Crown Prosecution Service told the court that much of this was sold from the embassy without paying value-added tax and excise duty.
Employer abuse and slavery
Diplomatic immunity from local employment and labor law has precipitated incidents in which diplomatic staff have been accused of abusing local workers, who are often hired for positions requiring local knowledge (such as an administrative assistant, press/PR officer) or for general labor. In such situations, the employees are in a legal limbo where the laws of neither the host country nor the diplomat's country are enforceable. Diplomats have ignored local laws concerning minimum wages, maximum working hours, vacation and holidays, and in some cases have imprisoned employees in their homes, deprived them of their earned wages, passports, food, and communication with the outside world, abused them physically and emotionally, and invaded their privacy. Reported incidents include the following:
In 1999, a Bangladeshi woman, Shamela Begum, claimed she had been enslaved by a senior Bahraini envoy to the United Nations and his wife. Begum charged that the couple took her passport, struck her, and paid her just $800 for ten months of service—during which she was only twice allowed out of the couple's New York apartment. The envoy and his wife claimed diplomatic immunity, and Begum later reached a civil settlement with her employers. By some estimates, "hundreds of women have been exploited by their diplomat employers over the past 20 years" to 2014.
In 2003 in Finland, a Filipina maid escaped from an embassy of an unidentified Asian country, and reported being held in conditions approaching slavery: she was forced to work from 7 a.m. to 10 p.m., 7 days a week, and the ambassador's children were permitted to hit her. On grounds of diplomatic immunity, no charges could be filed.
In 2009, South Africa was criticised for claiming immunity from labor laws relating to a Ukrainian domestic worker at the residence of the South African ambassador in Ireland.
In 2010, 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. An appeals court ruled that Al-Awadi did not have diplomatic immunity in that situation.
Vehicular offences
A particular problem is the difficulty in enforcing ordinary laws, such as prohibitions on double parking. For example, the Autobahn 555 in Cologne, Germany, was nicknamed the "Diplomatenrennbahn" (Diplomat's Racetrack) 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, for example The Hague and New York City, have taken to impounding such cars rather than fining their owners. Diplomats' status does not guarantee the release of impounded cars. Diplomats' cars may not be searched or entered in the US.
Diplomatic missions have their own regulations, but many require their staff to pay any fines due for parking violations. A 2006 economic study found that there was a significant correlation between home-country corruption (as measured by Transparency International) and unpaid parking fines: six countries had in excess of 100 violations per diplomat: Kuwait, Egypt, Chad, Sudan, Bulgaria and Mozambique. In particular, New York City, which hosts the United Nations Headquarters, regularly protests to the United States Department of State about nonpayment of parking tickets because of diplomatic status. In 2001, the city had more than 200,000 outstanding parking tickets from diplomats, totaling more than $21.3 million, of which only $160,682 had been collected; a decade later, the total cost of unpaid parking tickets was over $17 million. In 1997, then-mayor Rudy Giuliani proposed to the Clinton administration that the U.S. State Department revoke the special DPL plates for diplomats who ignore parking summonses; the State Department denied Giuliani's request.
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.
In January 1997, Gueorgui Makharadze, a high-ranking Georgian diplomat, caused a five-car pileup in Washington, D.C., in the United States, which killed a 16-year-old girl. Makharadze's claim of diplomatic immunity created a national outrage in the United States, particularly given Makharadze's previous record of driving offenses: In April 1996, Makharadze had been charged with speeding in Virginia, and four months later, he was detained by District of Columbia police on suspicion of drunk driving. In both prior cases, charges were dismissed based on his immunity. On the basis of the media coverage, Georgia revoked Makharadze's immunity, and he was ultimately sentenced to seven years in prison after pleading guilty to one count of involuntary manslaughter and four counts of aggravated assault.
Financial abuse
Historically, large debts run up by diplomats have caused many problems. Some financial institutions do not extend credit to diplomats because they have no legal means of ensuring the money be 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.
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.
In one case, for example, officials from Zaire stopped paying rent to their private landlord and ran up $400,000 in debt. When the landlord sued, the US State Department defended the Zaireans on the basis of diplomatic immunity, and a circuit court agreed. When the landlord finally cut off the utilities, the officials fled without paying their back rent. The landlords reportedly later reached an "amicable agreement" with the Zairean government.
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 UN 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 fulfill 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 UN dependency, travel, and education allowances for their families, though they are no longer supporting those families.
Espionage and sabotage
Franz von Papen entered the diplomatic service in December 1913 as a military attaché to the German ambassador in the United States. Starting in September 1914, Papen abused his diplomatic immunity as German military attaché, violating US laws to start organising plans for incursions into Canada for a campaign of sabotage against canals, bridges and railroads. In October 1914, Papen became involved with what was later dubbed "the Hindu–German Conspiracy", by covertly arranging with Indian nationalists based in California for arms trafficking to the latter for a planned uprising against the British Raj. In February 1915, Papen also covertly organised the Vanceboro international bridge bombing, in which his diplomatic immunity protected him from arrest. At the same time, he remained involved in plans to restore Huerta to power, and arranged for the arming and financing of a planned invasion of Mexico. Papen's covert operations were known to British intelligence, which shared its information with the US government. As a result, for complicity in the planning of acts of sabotage on 28 December 1915, Captain von Papen was declared persona non grata and recalled to Germany. Upon his return, he was awarded the Iron Cross.
On 24 April 2008, in New Orleans, Mexican press attaché Rafael Quintero Curiel was seen stealing BlackBerry PDA units from a White House press meeting room. Quintero made it all the way to the airport before members of the United States Secret Service caught up with him. He initially denied taking the devices, but after being confronted with security video, Quintero claimed it was purely accidental, gave the devices back, claimed diplomatic immunity and left New Orleans with the Mexican delegation. He was eventually fired for the incident.
In 2021, it was reported that the UAE Embassy in Canberra was building non-compliant fences and installing CCTV.
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 (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).