diplomatic immunity

Diplomatic immunity is a form of legal immunity and a policy held between governments 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 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. 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 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. 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). 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. A 2002 example of a Columbian diplomat in London being prosecuted for the manslaughter of a man who mugged his son in a Tesco car park was deemed in the public interest once diplomatic immunity was waived by the Columbian governmen
History
Ancient times

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 various 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 994 CE.

Pope Gelasius I was the first pope recorded as enjoying 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.

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 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
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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 various 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.A. § 254a et seq.][4] 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.[5]
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.[6] 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-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

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, in 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.[7]
Vehicular
The car on the right is double parked. Since it has Diplomatic License Plates, the driver would not be obliged to pay any citation issued.

A particular problem is the immunity of diplomatic vehicles to ordinary traffic regulations such as prohibitions on double parking.[8] Occasionally, such problems may take a most serious turn, when disregard for traffic rules leads to bodily harm or death.[9] Illustrating how widespread this problem is that in France, between November 2003 and 2004, there were 2,590 cases of diplomatic cars caught speeding by automatic radars. The Autobahn 555 in Germany was also nicknamed in Cologne 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. A diplomat cannot demand the release of an impounded car based on their status.

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.[10]

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 £28 million in unpaid charges as of 2009, with the American embassy comprising approximately £3 million and the Russian, German and Japanese missions each have around £2 million of outstanding fines.

* In 1979, in Sri Lanka, the Burmese Ambassador shot his wife as she got out of the car after seeing a player in a night-club band of whom she was enamoured. The next morning, his neighbours were surprised to see the Ambassador building a pyre on the back lawn. When the police were called, the Ambassador opened the metal front gates just enough to say that there was no trouble and to remind them that his house was Burmese territory. Then he went back to work. The houses around his long back garden were now alive with fascinated spectators as he emerged with the body of his wife, placed it on the pyre and set it alight. He was well connected at home; but, after an awkward interval, he was recalled.[13]
* In 1984, Libyan dissidents protested outside the Libyan embassy in London. British policewoman Yvonne Fletcher was killed by gunshots originating from the embassy. To date, the identity of the shooter has not been confirmed and the Libyan authorities made no effort to identify the culprit nor reveal whether the culprit was ever punished.
* In 1987, in New York City, 9-year-old Terrence Karamba was placed by the Human Resources Administration 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 but later released to the family, told officials the wounds had been inflicted by their father, Floyd Karamba, an Administrative Attache at the Zimbabwean Mission to the U.N. No charges were filed, as Mr. Karamba had diplomatic immunity.[14]
* In January 1997, in the U.S., the Deputy Ambassador of the Republic of Georgia, Gueorgui Makharadze, caused an accident that injured four people and killed a 16-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 Georgian government waived his immunity upon request from the U.S., and Makharadze was tried and convicted of manslaughter and sentenced to 7-to-21 years in prison. After serving three years of his sentence, he was returned to his home country, where he spent two more years in jail before being paroled.[9]
* On October 27, 1998, in Vladivostok, Russia, Douglas Kent, the American Consul General, was involved in a car accident that left a young man, Alexander Kashin, disabled. 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.[15][16]
* In January 2001, in Canada, Andrei Knyazev, a Russian diplomat drove his car into two pedestrians on a quiet residential street, killing one and seriously injuring the other. Knyazev had previously been stopped by Ottawa police on two separate occasions on suspicion of impaired driving. Russia refused the Canadian government's request to waive his immunity. 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.[17][18][19]
* On December 3, 2004, in Bucharest, Romania, Christopher Van Goethem, an American Marine serving his embassy, disregarded a traffic signal to stop, collided with a taxi, and killed the popular Romanian musician Teo Peter.[20] 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.[21] The Romanian government requested the American government to lift his immunity, which it has refused to do. In a court-martial, he was acquitted of manslaughter and adultery (which is still a court martial offence) but was convicted of obstruction of justice and making false statements.[22]
* On November 13, 2006, in New York City, Fred Matwanga, Kenyan diplomat to the U.N., was taken into police custody by officers responding to reports that he had assaulted his son; but he was released after police discovered he had a United States Department of State-issued credential identifying him as a diplomat.[23][24]
* On April 24, 2008, in New Orleans, Mexican press attaché Rafael Quintero Curiel was seen stealing BlackBerry PDA units from a White House press meeting room. 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 surveillance video. Curiel said the incident was accidental, claimed diplomatic immunity, and left the country; but he was eventually fired for the incident.[25]
* In December 2009, in Singapore, the Romanian chargé d'affaires, Silviu Ionescu, was allegedly behind a drunk-driving hit-and-run accident that killed a 30-year-old man and seriously injured two others. He left Singapore for Romania three days after the accident.[26][27] The Romanian foreign ministry suspended Ionescu from his post.[28] A coroner's inquiry in Singapore, which included testimony by the Romanian embassy driver, concluded that Ionescu was solely responsible for the accident.[29] An Interpol Red Notice was subsequently issued for his arrest and possible extradition [1] notwithstanding the fact that Romania had not waived his diplomatic immunity and had commenced criminal proceedings against him in Romania.[30] The Singapore government argued that by reason of Article 39(2) of the Vienna Convention, Ionescu was no longer protected by diplomatic immunity.[31][32]
* In 2009, in Tanzania, a Canadian Junior Envoy was arrested after it was reported that he spat at a traffic police officer on duty in the middle of a traffic jam in the Banana district on the outskirts of Dar es Salaam. Canada's High Commissioner, Robert Orr, was summoned by the Tanzanian Foreign Ministry over the incident, and the junior envoy was later recalled.[33][34][35]
* On January 27, 2011, in Lahore, Pakistan, an American embassy employee, Raymond Allen Davis, shot and killed two Pakistani civilians. According to Davis, they were about to rob him and he acted in self-defense. When detained by police, Davis claimed to be a consultant at the U.S. consulate in Lahore. He was formally arrested and remanded into custody. Further investigations revealed that he was working with the CIA as a contractor in Pakistan. U.S. State Department declared him a diplomat and repeatedly requested immunity under the Vienna Convention on Diplomatic Relations, to which Pakistan is a signatory.[36][37] Police officials identified the dead men as Faheem Shamshad, 26, and Faizan Haider, 22. A third person, Muhammad Abad ur Rehman, was struck and killed by a U.S. consulate car responding to the shooting.[38] In their investigation, police retrieved photographs, from Davis’ camera, of some sensitive areas and Pakistani defense installations; and it is possible that he may be charged with Espionage as well.[39] The wife of one of the slain men subsequently committed suicide, reportedly out of fear that Davis will not be prosecuted in the Pakistani judicial system.[40]
* In the late evening of April 10, 2011, in Islamabad, Pakistan, Patrick Kibuta, an electrical engineer in the United Nations Military Observer Group in India and Pakistan, left a party and drove a motor vehicle while impaired under the influence of alcohol and caused a serious collision with another vehicle. According to the police report, Mr. Kibuta, who was driving in the opposing lane, collided with a vehicle driven by a Canadian citizen residing in Islamabad. The victim suffered multiple fractures and required urgent surgery for her injuries. The accident occurred in the F6/1 section of Islamabad, and the Kohsar police impounded Mr. Kibuta's U.N. vehicle on the scene. A lab draw at a nearby hospital confirmed that he had an elevated blood alcohol level. Currently, charges for reckless and drunken driving have been filed against Mr. Kibuta; and an official investigation is pending to determine what, if any, legal recourse may be taken against Mr. Kibuta, who enjoys diplomatic immunity.[41][42]
* On September 16, 2011, South African International Relations Minister Maite Nkoana-Mashabane was on a state visit to Oslo, Norway, when she refused to pass her handbag through an x-ray scanner.[citation needed] As a result she missed her scheduled commercial flight to her next diplomatic engagement in Bulgaria.[citation needed] A private charter executive jet was then hired to transport her at a cost of R235 343, according to her department.[citation needed] In its response the department said that the Vienna Convention exempted diplomats from luggage searches at airports, and that the minister - as the country's top diplomat - was right to stand her ground.[citation needed]


Employer abuse

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 knowlege 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. There is an inherent conflict of interest, as the diplomat is the chief representative of their 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 communication with the outside world, abused them physically and emotionally, deprived them of food and invaded their privacy.[43][44] 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 their ambassador’s residence in Ireland.[45]

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.[46]
Financial

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

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.A. § 1609).[47] 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

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 gotten involved with family disputes and has refused to garnishee 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. Deadbeat "diplodads" 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.[48]
Taxes and fees

Diplomats are not necessarily exempt from paying government-imposed fees when there are "charges levied for specific services rendered." In certain cases, such as central 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 August 2009, it was reported that the Government of the U.K. believed the United States owed £3,500,000[49] in unpaid congestion charge fees.[50] It was also reported in 2006 that at least one embassy has agreed to pay the disputed charges.[51]

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.