Background
Diplomatic immunity is
a principle of international law by which certain foreign government
officials are not subject to the jurisdiction of local courts and other
authorities. The concept of immunity began with ancient tribes. In order
to exchange information, messengers were allowed to travel from tribe to
tribe without fear of harm. They were protected even when they brought bad
news. Today, immunity protects the channels of diplomatic communication by
exempting diplomats from local jurisdiction so that they can perform their
duties with freedom, independence, and security. Diplomatic immunity is
not meant to benefit individuals personally; it is meant to ensure that
foreign officials can do their jobs. Under the concept of reciprocity,
diplomats assigned to any country in the world benefit equally from
diplomatic immunity.
Legal Framework
The Vienna Convention
on Diplomatic Relations of 1961 and the Vienna Convention on Consular
Relations of 1963 codified most modern diplomatic and consular practices,
including diplomatic immunity. More than 160 nations, including the United
States, are parties to these treaties. The conventions provide immunity to
persons according to their rank in a diplomatic mission or consular post
and according to the need for immunity in performing their duties. For
example, diplomatic agents and members of their immediate families are
immune from all criminal prosecution and most civil law suits.
Administrative and technical staff members of embassies have a lower level
of immunity. Consular officers serving in consulates throughout the
country have an even lower level of immunity. Members of an embassy's
service staff and consular employees are immune only for acts performed as
part of their official duties.
The United States
considers the Vienna conventions particularly important because of the
large number of American diplomatic and consular personnel stationed in
countries where judicial systems are very different and less protective of
individual rights than our own or where unfriendly governments might use
their police authorities to harass American diplomats and their families.
Failure by U.S. authorities to uphold the Vienna conventions would
complicate U.S. diplomatic relations and could lead to harsher treatment
in foreign courts of U.S. personnel abroad.
Abuses of
Diplomatic Immunity
Under the Vienna
conventions, all persons entitled to immunity have the obligation and duty
to respect the laws and regulations of the host country. Immunity is not a
license to commit a crime, and violations of the law are not condoned. In
the United States, any time a person with immunity is alleged to have
committed a crime, the Department of State advises his or her government
of the incident and, where prosecution would be the normal procedure,
requests a waiver of the alleged offender's immunity so that the case may
be heard in the appropriate U.S. court. If immunity is not waived, the
Department of State may, in serious cases, order the withdrawal of the
offender from the United States. In the case of an offense committed by a
member of a diplomat's family, the diplomat and his or her entire family
may be expelled. Diplomatic visas of serious offenders are canceled, and
their names are entered into a worldwide lookout system to keep them from
returning to the United States.
The Department of
State's Office of Protocol works with the injured parties and the foreign
government to secure restitution in those cases where criminal incidents
have resulted in injuries to individuals. The Diplomatic Relations Act of
1978 and related regulations require that before a person with immunity
can obtain license plates for a vehicle, he or she must have liability
insurance. Anyone injured in an automobile accident by a person with
immunity may bring direct action against the vehicle's insurer in U.S.
District Court. In addition, diplomats do not have a right to endanger
public safety by driving a vehicle while under the influence of alcohol or
by disregarding the rules of the road. Police stop them and, if they are
intoxicated, prevent them from driving. Police issue citations for driving
offenses and the Department of State revokes drivers' permits for any
persons found to be unsafe drivers or who continually abuse driving
regulations. Furthermore, some countries follow the practice of
investigating, and, if appropriate, taking legal action against their own
diplomats who are accused of breaking a host country's laws.
In those cases where
immunity prevents civil suits, the Department of State works to settle the
matter and mediates disputes in an effort to find a mutually satisfactory
solution.
The vast majority of
persons entitled to some form of diplomatic immunity are law-abiding
people. Only a few ever run afoul of the law. Unfortunately, those few who
do exhibit egregious behavior draw the attention of the public and the
media and damage the reputation of the entire group.
(Prepared by the
U.S.Department of State, Office of the Legal Adviser, January 13, 1997
)
