By Robert Longley

Updated on September 01, 2024

Diplomatic immunity is a principle of international law that provides foreign diplomats with
a degree of protection from criminal or civil prosecution under the laws of the countries
hosting them. In international law, diplomatic immunity is governed by the Vienna
Convention on Diplomatic Relations 1961 (VCDR), to which almost every state is a party.
Often criticized as a “get away with murder” policy, does diplomatic immunity give
diplomats carte blanche to break the law?
While the concept and custom are known to date back over 100,000 years, modern diplomatic
immunity was codified by the Vienna Convention on Diplomatic Relations in 1961. Today,
many of the principles of diplomatic immunity are treated as customary under international
law. The stated purpose of diplomatic immunity is to facilitate the safe passage of diplomats
and promote amicable foreign relations between governments, particularly during times of
disagreement or armed conflict.
The Vienna Convention, which has been agreed to by 187 countries, states that all
“diplomatic agents” including “the members of the diplomatic staff, and of the administrative
and technical staff and of the service staff of the mission” should be granted “immunity from
the criminal jurisdiction of the receiving State.” They are also granted immunity from civil
lawsuits unless the case involves funds or property not related to diplomatic assignments.
Upon being formally recognized by the hosting government, foreign diplomats are granted
certain immunities and privileges based on the understanding that similar immunities and
privileges will be granted on a reciprocal basis.
Under the Vienna Convention, individuals acting for their governments are granted
diplomatic immunity depending on their rank and need to carry out their diplomatic mission
without fear of becoming entangled in personal legal issues. While diplomats granted
immunity are ensured safe unfettered travel and are generally not susceptible to lawsuits or
criminal prosecution under the laws of the host country, they can still be expelled from the
host country.
Waiver of Immunity
Diplomatic immunity can be waived only by the government of the official’s home country.
In most cases, this happens only when the official commits or witnesses a serious crime not
related to their diplomatic role. Many countries are hesitant or refuse to waive immunity, and
individuals cannot—except in cases of defection—waive their own immunity.
If a government waives diplomatic immunity to allow the prosecution of one of its diplomats
or their family members, the crime must be serious enough to make prosecution in the public
interest. For example, in 2002, the Colombian government waived the diplomatic immunity
of one of its diplomats in London so he could be prosecuted for manslaughter.
Diplomatic Immunity in the United States
Based on the principles of the Vienna Convention on Diplomatic Relations, the rules for
diplomatic immunity in the United States are established by the U.S. Diplomatic Relations
Act of 1978. In the United States, the federal government may grant foreign diplomats
several levels of immunity based on their rank and task. At the highest level, actual
Diplomatic Agents and their immediate families are considered immune from criminal
prosecution and civil lawsuits.
Top-level ambassadors and their immediate deputies can commit crimes—from littering to
murder—and remain immune from prosecution in the U.S. courts. In addition, they cannot be
arrested or compelled to testify in court. At the lower levels, employees of foreign embassies
are granted immunity only from acts related to their official duties. For example, they cannot
be forced to testify in U.S. courts about the actions of their employers or their government.
As a diplomatic strategy of U.S. foreign policy, the United States tends to be “friendlier” or
more generous in granting legal immunity to foreign diplomats due to the comparatively
large number of U.S. diplomats serving in countries that tend to restrict the individual rights
of their own citizens. Should the U.S. accuse or prosecute one of their diplomats without
sufficient grounds, the governments of such countries might harshly retaliate against visiting
U.S. diplomats. Once again, reciprocity of treatment is the goal.
Criminal Abuse of Diplomatic Immunity
Probably as old as the policy itself, abuse of diplomatic immunity ranges from non-payment
of traffic fines to serious felonies like rape, domestic abuse, and murder.
In 2014, New York City police estimated that diplomats from more than 180 countries owed
the city over $16 million in unpaid parking tickets. With the United Nations housed in the
city, it’s an old problem. In 1995, New York Mayor Rudolph Giuliani forgave over $800,000
in parking fines rung up by foreign diplomats. While possibly meant as a gesture of
international goodwill designed to encourage favourable treatment of U.S. diplomats abroad,
many Americans—having been forced to pay their own parking tickets—did not see it that
way.
On the more serious end of the crime spectrum, a foreign diplomat’s son in New York City
was named by police as the prime suspect in the commission of 15 separate rapes. When the
young man’s family claimed diplomatic immunity, he was allowed to leave the United States
without being prosecuted.
Civil Abuse of Diplomatic Immunity
Article 31 of the Vienna Convention on Diplomatic Relations grants diplomats’ immunity
from all civil lawsuits except for those that involve “private immovable property.”
This means that U.S. citizens and corporations are often unable to collect unpaid debts owed
by visiting diplomats, like rent, child support, and alimony. Some U.S. financial institutions
refuse to make loans or open lines of credit to diplomats or their family members because
they have no legal means of ensuring the debts will be repaid.
Diplomatic debts in unpaid rent alone can exceed $1 million. The diplomats and the offices
they work in are referred to as foreign “missions.” The individual missions cannot be sued to
collect overdue rent. In addition, the Foreign Sovereign Immunities Act bars creditors from
evicting diplomats due to unpaid rent. Specifically, Section 1609 of the act states that “the
property in the United States of a foreign state shall be immune from attachment, arrest, and
execution…” In some cases, in fact, the U.S. Department of Justice has actually defended
foreign diplomatic missions against rent collection lawsuits based on their diplomatic
immunity.
The problem of diplomats using their immunity to avoid paying child support and alimony
became so serious that the 1995 U.N. Fourth World Conference on Women, in Beijing took
up the issue. As a result, in September 1995, the head of Legal Affairs for the United Nations
stated that diplomats had a moral and legal obligation to take at least some personal
responsibility in family disputes.
Diplomatic Passports
Along with diplomatic immunity, diplomats and other high-ranking government officials may
be given special diplomatic passports allowing them to travel internationally with more ease.
The United States, for example, typically issues diplomatic passports to its diplomats who are
stationed overseas.
Holders of diplomatic passports are allowed to cross international borders while bypassing a
lot of the typical travel regulations that must be followed by regular passport holders.
However, the use of a diplomatic passport implies that the holder is traveling on official
government business only, and in certain instances, security officials can compel them to
prove they are doing so. To ensure smooth passage, the requirement for a visa is often
waived. British diplomatic passport holders, for example, get visa-free entry to China. Only
persons who have diplomatic status can be issued diplomatic passports. They are not
documents that can be applied for by anyone.
Traveling internationally with this type of travel document affords the holder certain benefits
that those with a regular tourist passport do not have. While it differs depending on the
destination country and its specific immigration regulations, a diplomatic passport generally
allows the visitor numerous privileges not enjoyed by those with a regular tourist passport.
Assumed to be traveling on official government business, holders of diplomatic passports are
exempt from certain airport security protocols, such as bag searches and identity checks.
The current diplomatic spat between the United Kingdom and the United States, following a
fatal road accident involving the wife of a US “diplomat”, draws attention, yet again, to
diplomatic immunity and its potential abuse. The facts, as reported by the UK media and
based on witness accounts, are that on 27 August 2019, a car was being driven on the wrong
side of the road and collided with a motorcycle ridden by Harry Dunn, a 19-year-old Briton.
The car had just left RAF Croughton, a Royal Air Force base in Northamptonshire used by
US forces. The driver was Anne Sacoolas, the wife of a US government employee at the base.
She was questioned by police, but she returned to the US shortly afterwards.
Compounding the grief and dismay of Dunn’s family was the claim, apparently asserted by
the UK Foreign Office, that Ms Sacoolas had diplomatic immunity and could not be
prosecuted over the collision anyway. This led to demands from many quarters, including by
Prime Minister Boris Johnson, that the US waive her immunity and return her to the UK for
prosecution. In the latest news, the Foreign Secretary has confirmed that as Ms Sacoolas has
left the UK, diplomatic immunity no longer applies, so there is no impediment to the criminal
investigation proceeding – apart, of course, from the fact that she is not present in the
country.
The rationale for immunity, for both diplomats and their families, is simple and fundamental:
to protect the envoy from any interference in the performance of his or her functions. The
incident, and the public reaction to it, raise two issues of particular interest. First, was Ms
Sacoolas ever entitled to diplomatic immunity, and second, is it time to revisit the extent of
that immunity?
The UK’s obligations under the VCDR are implemented by the Diplomatic Privileges Act
1964 (UK). In essence, a diplomat in post is completely immune from criminal proceedings,
and almost completely immune from civil proceedings with some exceptions.
This immunity extends to the family of the diplomat, so that Ms Sacoolas could not be
prosecuted in the UK for as long as her husband held whatever position it was that entitled
him to diplomatic immunity. Diplomats retain immunity forever for their official acts, but that
condition obviously cannot apply to their families. So if Ms Sacoolas were to return, she
would only have immunity if her husband were still in post, and media reports suggest that he
has also left the UK.
But Mr Sacoolas was not a diplomat – neither he nor his wife was listed in the UK
Diplomatic List of all foreign diplomatic staff in London. Unnamed UK diplomats to whom
The Guardian spoke explained that the Diplomatic List was not exhaustive, and that RAF
Croughton was “treated as an annex of the US embassy”. RAF Croughton is a critically
important US intelligence facility: a fibre-optic cable runs from the base to the US Camp
Lemonnier in Djibouti, which conducts drone strikes in Somalia and Yemen. Mr Sacoolas
was therefore probably a CIA employee (the National Security Agency have denied he was
theirs), which may explain both governments’ reluctance to elaborate on his immunity status.
It has been suggested that he might have been covered by the Visiting Forces Act 1952 (UK),
which provides that visiting forces are subject only to the sending state’s military courts and
not the local UK courts. But even if it did apply, the Act does not extend to family members.
Another possibility is foreign state immunity, which would certainly confer immunity on Mr
Sacoolas as a US government employee, but only for official acts and from some civil
proceedings – not family members charged with criminal offences. “Special mission”
immunity is very similar to diplomatic immunity but would not fit comfortably here – it is
intended to cover temporary official visits rather than employment overseas.
If Mr Sacoolas had nevertheless been granted “diplomatic” immunity, it would need to be on
some legal basis, because otherwise one arm of the government (the Foreign Office) would
be arbitrarily excluding the power of another arm of the government (the courts). But the
ability to challenge such a grant is limited, one obstacle being s4 of the 1964 Act which says
that a certificate issued by the Foreign Secretary is conclusive evidence that the person named
is entitled to immunity.
The rationale for immunity, for both diplomats and their families, is simple and fundamental:
to protect the envoy from any interference in the performance of his or her functions.
Politically motivated prosecutions are of particular concern, and examples abound in many
countries of government critics and political enemies facing clearly trumped-up charges of
sedition, fraud, corruption, and even treason.
Because the VCDR system is based on reciprocity, creating exceptions to immunity may be
fine for a state such as the UK or Australia, but not for diplomats in states that do not follow
the rule of law. However, traffic offences are – generally – objectively verifiable, and
therefore less susceptible to political manipulation. And given the extent of abuse of
diplomatic immunity in all traffic matters, from parking fines to causing death, it is well
beyond time for the international community to amend the law accordingly.