Diplomatic immunity – overveiw

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There has been a lot of talk on diplomatic immunity recently, especially regarding the Pope. As such I thought it may be a good plan to write a bit about diplomatic immunity and what it entails.

So how much immunity does a person really have? It depends on your rank, a quick breakdown of the can be seen here. Top diplomatic officers have full immunity, as do their deputies and families. That means ambassadors can commit just about any crime—from jaywalking to murder—and still be immune from prosecution. They can’t be arrested or forced to testify in court. (This category would probably include al-Madadi, who serves as third secretary in the Qatari embassy). Lower-ranking officials have a weaker type of protection called “functional immunity.” These officials are covered only for crimes committed within the scope of their regular work responsibilities. If, for example, a consular official got into a fistfight during a meeting with a U.S. official, he would be protected from prosecution. If the fight occurred at a bar over the weekend, he would not. Service staff for an embassy or consulate, from the kitchen employees to the valets, have no immunity whatsoever. And, contrary to popular belief, any diplomat can be issued a traffic citation. They just can’t be forced to pay it.

There are limits, however, though these usually require the person to be sent home and their higher ups to agree that conviction or repercussions are necessary In 1997, for example, the Republic of Georgia waived the immunity of its No. 2 diplomat after he killed a 16-year-old girl from Maryland while driving drunk. He was prosecuted, convicted of manslaughter, and served three years in a North Carolina prison before returning to Georgia, where he was paroled after two more years in prison.

Diplomatic immunity has been around for hundreds of years under customary international law as something of a golden rule: Treat other diplomats as you would like yours to be treated. This custom has also helped prevent politicians from ordering the prosecution of diplomats on trumped-up charges as a way to pressure their foreign enemies. The rules of diplomatic immunity were codified in 1961 in the Vienna Convention on Diplomatic Relations.

There are problems with this though; diplomatic immunity – the law which allowed the Libyan killers to escape with a police escort – is an offshoot of the theory that government members and agents are legally untouchable abroad for anything done during their term of office, even if it’s a crime of so called “private lust” (like rape or child abuse). However, it does not protect an ex-official of a state from prosecution for crimes against humanity, such as genocide or torture, where sovereign immunity is overridden by an international convention.

But this still leaves diplomats free to murder and rape and run up unpaid parking fines, because they are protected by a convention agreed in Vienna in 1961. This may have been expedient during the cold war, to protect diplomats from being framed (as well as blackmailed and honey-trapped). But it produced the result that foreign officials – and their spouses and children and chauffeurs – may fearlessly engage in serious crime, using their inviolable embassy premises and baggage for drug and gun-running and money laundering, or assist terrorists with whom their state is in political sympathy. The only thing that can happen is a declaration that they are persona non grata, followed by a police escort to the airport, unless their sending state waives immunity.

However, in a democracy this system sort of works as a diplomat will in time become such a liability in terms of international affairs and general public opinion that they will either be removed from their post or their immunity revoked.

In other systems though this is more complex: Going back to the case of the pope, for example, the Vatican state is a theocracy, so in effect the Pope is the government, meaning that he would have to dismiss or remove immunity from himself… and that won’t happen will it? I don’t think anyone ever would do that to theirselves.