What is Diplomatic Immunity?

In this article, we will answer the question: “what is diplomatic immunity?” within the context of international relations. We shall define diplomatic immunity, examine the origins and history of diplomatic immunity, and also discuss cases where diplomatic immunity was not, or is not provided to an individual. We will also discuss controversies surrounding diplomatic immunity as they have arisen in international relations.

The idea of diplomatic immunity is a key issue in diplomacy and international affairs. as Muñoz (2012) writes, “The idea that a society could send a person on their behalf to negotiate and argue for their cause has been a vital tool in the history of international relations. As the connections between the different societies grew stronger the need for diplomatic tools became more evident and the concept became customary law to later evolve to being structured by various treaties. Diplomatic relations between countries is now a central element in international relations and diplomatic agents acting in favor of their States’ interests is a fundamental brick in building a peaceful internationalized world” (6).

Definition of Diplomatic Immunity

In order to know what is diplomatic immunity, we must first look at the definition. The definition of diplomatic immunity is as follows: “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 for both their official and, to a large extent, their personal activities” (US Department of State). The idea of diplomatic immunity is that foreign officials will not be as effective in their work without diplomatic immunity; “The underlying concept is that foreign representatives can carry out their duties effectively only if they are accorded a certain degree of insulation from the application of standard law enforcement practices of the host country” (US Department of State). Related to this point, Brown (1998) writes that, “The key is in its practical utility. It is essential for the safe and regular conduct of diplomatic relations, in particular in the daily performance by diplomatic missions of their functions of representing the sending State in the receiving State and in reporting on conditions and developments in the receiving State to their governments. The occasional and sometimes flagrant breaches of diplomatic privileges and immunities7 draw attention away from the quiet fact that the Convention works day in and day out in the service of all governments in the world, their representatives, property and communications, without any difficulty” (54).

Thus, if an individual commits a crime in a foreign country, they may be immune from prosecution. Now, this does not mean that all crimes will go un-prosecuted. However, it would often take the country that the person is a nation of to waive the individual’s right to diplomatic immunity. This has at times happened. For example, “In 1997, Gueorgui Makharadze, formerly the second-highest-ranking diplomat at the Georgian Embassy in Washington, had his diplomatic immunity waived after he killed a Maryland teenager in a drunk driving accident. Makharadze had gotten out of a drunk-driving charge the previous year by claiming diplomatic immunity. He was sentenced to 21 years in prison and was later transferred to Georgia to finish his sentence” (Keating, 2011).

In other cases, even if they are provided diplomatic immunity in the country that they are working in, that host country can declare the person to be persona non grata (or unwelcome in their country), and thus could have the individual leave the state. Now, declaring persona non grata would not be without risks to jeopardizing the diplomatic and international relations between two countries, particularly if the country in which the individual is a national of does not agree with the status that was conferred on the diplomat. For example, Article 9 (1) of the Vienna Convention on Diplomatic Relations states that “The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.”

Categories of Diplomatic Immunity

With regards to what is diplomatic immunity, it is however important to note that “The term diplomatic immunity is popularly, and erroneously, understood to refer to special protections afforded all employees of foreign governments who are present in the United States as official representatives of their home governments” (US Department of State). This is not the case. There are different forms of immunity in international relations. While there is diplomatic immunity, this does indeed differ from what is referred to as consular immunity. For example, individuals working for foreign governments within the United States, “Many of these persons may be entitled to some degree of immunity under international law. Some of these persons are members of diplomatic missions, others are assigned to consular posts, and still others are employees of international organizations or members of national missions to such international organizations. For each of these categories of persons, particular rules apply and, even within these categories, different levels of immunity may be accorded to different classes of persons” (US Department of State). The United States Department of State has outlined the various categories of diplomatic service, and the types of diplomatic immunity related to those positions. They look at the different types of positions within Diplomatic Missions, which themselves “…are traditionally the principal communication link between the country that sends them and the host country. Accordingly, the staffs of diplomatic missions (embassies) are afforded the highest level of privileges and immunities in the host country in order that they may effectively perform their important duties.”

Diplomatic Agent: The US Department of State explains that “Diplomatic agents enjoy the highest degree of privileges and immunities. They enjoy complete personal inviolability, which means that they may not be handcuffed (except in extraordinary circumstances), arrested, or detained; and neither their property (including vehicles) nor residences may be entered or searched. Diplomatic agents also enjoy complete immunity from the criminal jurisdiction of the host country’s courts and thus cannot be prosecuted no matter how serious the offense unless their immunity is waived by the sending state” (7-8).
Administrative Staff; Technical Staff: These individuals work on ensuring that the embassy or mission is functioning properly. Administrative, as well as technical staff within embassies “enjoy privileges and immunities identical to those of diplomatic agents in respect of personal inviolability, immunity from criminal jurisdiction, and immunity from the obligation to provide evidence as witnesses. Their immunity from civil jurisdiction, however, is quite different. Members of the administrative and technical staff enjoy immunity from civil jurisdiction only in connection with the performance of their official duties. This is commonly known as official acts or functional immunity…” (8).
Service Staff: Those who are working as staff within embassies “are accorded much less in the way of privileges and immunities than are those in the other categories. Service staff members have official acts immunity only…and enjoy no personal inviolability, no inviolability of property, and no immunity from the obligation to provide evidence as witnesses. The families of service staff members enjoy no privileges or immunities” (8-9).
Nationals of the country in which they are serving: Although not as common, there can be cases where an individual is a duel national (having citizenship in two countries), and thus, could be serving for one country, in their other country of citizenship. In the case of the United States, if a person is serving their other country, within the United States, because they are also a U.S. national, or if they are permanent residents of the United States, or if a foreign national is “permanently residing” in the country, s/he would not be granted diplomatic immunity. The State Department, writing on this issues, says: “The United States, as a matter of policy, does not normally accept as diplomatic agents its own nationals, legal permanent residents of the United States, or others who are “permanently resident in” the United States. The family members of diplomatic agents enjoy no privileges or immunities if they are nationals of the United States” (9).
Temporary Service: An individual may be sent by a country for a quick assignment. In this case, these short term duty positions do not offer diplomatic immunity.
Consulate Workers: Consulate workers are important in helping their nations function in the foreign country that they are operating in. While this work is of course important, the State Department notes that “consular personnel generally do not have the principal role of providing communication between the two countries — that function is performed by diplomatic agents at embassies in capitals. The 1963 Vienna Convention on Consular Relations grants a very limited level of privileges and immunities to consular personnel assigned to consulates that are located outside of capitals” (10). Thus, consular officers “have only official acts or functional immunity in respect to both criminal and civil matters, and their personal inviolability is quite limited.” In addition, their property can be infringed upon, and they can be arrested for misdemeanors and felonies (and can be held for felonies until the trial begins (US Department of State) (11). Other staff at consulates also do not have diplomatic immunities (other than official acts immunity” (11).

In addition to these conditions for diplomatic immunity, states can also make deals with other states or entities to expand upon notions of diplomatic immunity. For example, the United States has this with Taiwan under “the Taiwan Relations Act of 1979 and the Agreement on Privileges, Exemptions, and Immunities between the American Institute in Taiwan and the Taipei Economic and Cultural Representative Office in the United States” from 2013 (US Department of State, 14) (here is a link to the Agreement on Privileges, Exemptions, and Immunities between the two state entities).

History of Diplomatic Immunity

The idea of diplomatic immunity extends back centuries. In fact, it has been pointed out that there are various references to the idea of diplomatic immunity in the historical records as it pertains to international relations in Ancient Greece, Rome, East Asia, ancient Babylon, Egypt, Israel, among many other places. The idea then, like now, is to ensure the safety and protection of the individual, and enhance the ability for them to serve related to their diplomatic mission. But while there are historical examples of diplomatic immunity that span back centuries, much of the current laws on diplomatic immunity stems from the 1961 Vienna Convention on Diplomatic Relations. It is here that diplomatic immunity was agreed upon. For example, Article 31 of the Vienna Convention on Diplomatic Relations says that:

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

In the case of United States history, “U.S. law regarding diplomatic immunity has its roots in England. In 1708, the British Parliament formally recognized diplomatic immunity and banned the arrest of foreign envoys. In 1790, the United States passed similar legislation that provided absolute immunity for diplomats and their families and servants, as well as for lower ranking diplomatic mission personnel. This 1790 law remained in force until 1978, when the present Diplomatic Relations Act (22 U.S.C. 254) was enacted to replace it. The principal purpose of the 1978 Act was to bring U.S. law into line with the 1961 Vienna Convention on Diplomatic Relations (which entered into force for the United States in 1972). The 1978 Act imposed a more precise regime and reduced the degree of immunity enjoyed by many persons at diplomatic missions and reduced the degree of immunity enjoyed by many persons at diplomatic missions.” (US State Department).

How to get diplomatic immunity

One of the related questions to ‘what is diplomatic immunity’ is another question that students of international relations may want to know: how does one get diplomatic immunity? Again, diplomatic immunity is based upon 1961 international law that provides various protections for foreign diplomats. The level of one’s diplomatic immunity would depend upon what position they were serving for their country, in another foreign state. Diplomatic immunity itself is not applied for, but rather, is an understanding between states as they are conducting their international relations (although it often takes recognition both by the sending state, as well as by the receiving state).

According to the Vienna Convention on Diplomatic Relations, the country sending the diplomats gets to decide who gets to be a diplomat, and thus, receive diplomatic immunity. However, they are also expected to notify the country in which the diplomats are going to work who is designated as a diplomat, with exceptions (and even these issues can be disagreed upon within the legal systems of a country). Interestingly, “The freedom of appointment and classification of staff has been some- what eroded by practice, by means of an increasingly elaborate form of notification required by receiving States. Article 10 requires that the ministry for foreign affairs of the receiving State shall be notified of the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission. Similar notifications are required in respect of other persons enjoying privileges or immunities” (Brown, 1988: 55). For example, with regards to the United States, “The US Department of State has reserved to itself the right to determine the proper classification of staff. A US court has said, on the other hand, that, while acknowledging that the State Department must be “properly notified” in accordance with “specific normal procedure”, it does not have “unbridled discretion to deem notifications of appointment sufficient or insufficient in individual cases, especially when the rights and prerogatives of third parties may be affected” (Brown, 1988: 56).

Brown (1998) points out that “The importance of the notification system is that it enables the foreign ministry of the receiving State to say who is a diplomatic agent: the sending State appoints, but the receiving State in effect determines status. There is nothing in the Convention on the recognition, as such, of diplomatic agents. The courts, which determine immunity, state that recognition is a matter for the executive government, or for the foreign ministry in particular” (56).

Diplomatic Immunity Cases

There have been many instances where diplomatic immunity requests have come up on controversial cases. For example, one of the most recent high-profile cases of diplomatic immunity was that of Raymond Davis, a US contractor who was working for America at the US consulate general in Lahore, Pakistan. It was reported that Davis “was hired by the C.I.A. as a private contractor, what the agency calls a “Green Badge,” for the color of the identification cards that contractors show to enter C.I.A. headquarters at Langley. Like Davis, many of the contractors were hired to fill out the C.I.A.’s Global Response Staff — bodyguards who traveled to war zones to protect case officers, assess the security of potential meeting spots, even make initial contact with sources to ensure that case officers wouldn’t be walking into an ambush” (New York Times, 2013).

What made this case quite controversial was that in 2011, Davis killed two men in Lahore. The New York Times writes of the situation:

Davis…shot two young men who approached his car on a black motorcycle, their guns drawn, at an intersection congested with cars, bicycles and rickshaws. Davis took his semiautomatic Glock pistol and shot through the windshield, shattering the glass and hitting one of the men numerous times. As the other man fled, Davis got out of his car and shot several rounds into his back.

He radioed the American Consulate for help, and within minutes a Toyota Land Cruiser was in sight, careering in the wrong direction down a one-way street. But the S.U.V. struck and killed a young Pakistani motorcyclist and then drove away. An assortment of bizarre paraphernalia was found, including a black mask, approximately 100 bullets and a piece of cloth bearing an American flag. The camera inside Davis’s car contained photos of Pakistani military installations, taken surreptitiously.

Following the shootings, Davis was taken into custody by Pakistani authorities. Here, he was being held by authorities–who had no weapons (reportedly a concession the United States was able to get the Pakistani authorities to agree to). The US-Pakistani tension over Davis quickly became apparent. The United States was calling for Davis to be released, citing diplomatic immunity. Some Pakistani figures, and many within Pakistani civil society, on the other hand, felt that Davis should not be released.

Davis’ case was problematic, in part, because of his role and responsibilities in Pakistan. As the New York Times (2013) wrote, “the most significant factor ensuring that Davis would languish in jail was that the Obama administration had yet to tell Pakistan’s government what the Pakistanis already suspected, and what Raymond Davis’s marksmanship made clear: He wasn’t just another paper-shuffling American diplomat. Davis’s work in Pakistan was much darker, and it involved probing an exposed nerve in the already-hypersensitive relationship between the C.I.A. and Pakistan’s military intelligence service, the Directorate for Inter-Services Intelligence, or I.S.I.” The United States government may have worried about having to tell Pakistani officials what Davis was doing in Pakistan.

United States President Barack Obama spoke about the Davis case on February 15th, 2011, saying that he was a US diplomat, and that he should be let go, based upon the notion of diplomatic immunity (New York Times, 2013). It was evident that he wanted to appeal to the idea of diplomatic immunity to get Davis free, saying that “If our diplomats are in another country,” “then they are not subject to that country’s local prosecution.” Much of the idea about whether Davis is eligible for diplomatic immunity depended on how one framed his work in Pakistan. While he was working for the United States government (and thus, may be viewed as having diplomatic immunity), “there was a dispute about whether his work in the Lahore Consulate, as opposed to the American Embassy in Islamabad, gave him full diplomatic immunity under the Vienna Convention on Diplomatic Relations.” (New York Times, 2013). Plus, local authorities did not view him as a diplomat deserving of immunity, but rather, as a spy (New York Times, 2013).

Davis was continued to be held. The public in Pakistan was waiting for a decision to be made. Some already believed that the US would be able to release him based on claims they would make based on diplomatic immunity, as well as the US’ influence in Pakistan. The emotions of the case intensified when Shumaila Faheem, a widow of one of those individuals killed by Davis, took poison, which eventually led to her death. It was reported that she said “”They are already treating my husband’s murderer like a V.I.P. in police custody, and I am sure they will let him go because of international pressure”” (New York Times, 2013). The US government, with the Pakistani ISI then decided to speak with the victims’ families, and have the US offer monetary compensation in exchange for Davis being released. This was at the same time that the highest court in Pakistan was going to decide if Davis did indeed have the right to diplomatic immunity (New York Times, 2013).

The situation changed on March 16th, 2011, the day Davis was scheduled for court. The New York Times writes of the events of that day:

The first part of the hearing went as everyone expected. The judge, saying that the case would go ahead, noted that his ruling on diplomatic immunity would come in a matter of days. Pakistani reporters frantically began filing their stories about how this seemed a blow to the American case, and that it appeared that Davis would not be released from jail anytime soon. But then the judge ordered the courtroom cleared, and General Pasha’s secret plan unfolded.

Through a side entrance, 18 relatives of the victims walked into the room, and the judge announced that the civil court had switched to a Shariah court. Each of the family members approached Davis, some of them with tears in their eyes or sobbing outright, and announced that he or she forgave him. Pasha sent another text message to Munter: The matter was settled. Davis was a free man. In a Lahore courtroom, the laws of God had trumped the laws of man.

The drama played out entirely in Urdu, and throughout the proceeding, a baffled Davis sat silently inside the cage. He was even more stunned when I.S.I. operatives whisked him out of the courthouse through a back entrance and pushed him into a waiting car that sped to the Lahore airport.

While Davis was able to be taken out of Pakistan and into US custody, it was not without fury in Pakistan. A number of protests were organized in the country, with people upset at what they saw as injustice over Davis’ crimes.