Diplomatic and Consular Privileges and Immunities from Criminal Jurisdiction

Diplomatic immunity

Diplomatic immunity is a form of legal immunity and a policy held between governments, which ensures that diplomats are given safe passage and are considered not susceptible to suit or prosecution under the host country's laws (although they can be expelled as undesirable - persona non grata). It was agreed as international law in Vienna Convention on Diplomatic Relations (1961), though there is a much longer history in international law. It is possible for the official's home country to waive immunity; this tends to only happen 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.

This leads to some unfortunate results; protected diplomats have violated laws (including those which 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 said diplomat is no longer welcome (the latin phrase is 'persona non grata'). Such violations have included espionage in a large number of cases, smuggling of small high value items in a surely much larger number of instances, some troubling child custody law violations, and even murder in a few cases.

A particular problem with an intermittently amusing side is the immunity of diplomatic vehicles to ordinary traffic regulations such as prohibitions on double parking. In New York City, the home of the United Nations Headquarters and a city in which many drivers regard double parking as normal despite regulations, protests against double parked diplomatic vehicles have a certain quixotic quality. Nonetheless, the City eternally, and interminably, protests to the US Department of State about non-payment of parking tickets due to diplomatic status.

Diplomatic and Consular Privileges and Immunities From Criminal Jurisdiction

Summary of Law Enforcement Aspects

Note that the below applies to the United States. In other countries other rules may apply, though in most cases this summary is a reasonably accurate approximation.

Residence May Be May Be May Be May Be Recognized Arrested Entered Issued May Be Category Subpoenaed as Family or Subject to Traffic Prosecuted Witness Member Detained Ordinary Citation Procedures Diplomatic Same as sponsor (full Diplomatic Agent No1 No Yes No No immunity and inviolability) Member of Same as Administrative sponsor (full No1 No Yes No No and Technical immunity and Staff inviolability) Service Staff Yes2 Yes Yes Yes No, for No immunity or official acts. inviolability2 Otherwise, yes2 No, for official Yes, if for a No, for acts. Testimony Career Consular felony and official acts. No immunity or Yes4 Yes may not be Officers pursuant to Otherwise, inviolability2 compelled in a warrant.2 yes3 any case. No, for No, for official Consular Honorary official acts. No immunity or Yes Yes Yes acts. Yes, in all Consular Officers Otherwise, inviolability other cases yes No, for No, for official Consular official acts. No immunity or Yes2 Yes Yes acts. Yes, in all Employees Otherwise, inviolability2 other cases yes2 No, for International No, for official official acts. No immunity or Organization Yes3 Yes3 Yes acts. Yes, in all Otherwise, inviolability2 Staff3 other cases yes3 Diplomatic-Level Same as International Staff of Missions sponsor (full No1 No Yes No No Organizations to International immunity and Organizations inviolability) Support Staff of No, for No, for official Missions to official acts. No immunity or Yes Yes Yes acts. Yes, in all International Otherwise, inviolability other cases Organizations yes

1Reasonable constraints, however, may be applied in emergency circumstances involving self-defense, public safety, or the prevention of serious criminal acts.

2This table presents general rules. Particularly in the cases indicated, the employees of certain foreign countries may enjoy higher levels of privileges and immunities on the basis of special bilateral agreements.

3A small number of senior officers are entitled to be treated identically to “diplomatic agents.”

4Note that consular residences are sometimes located within the official consular premises. In such cases, only the official office space is protected from police entry.

This chart is copied from the US State Department's Bureau of Diplomatic Security Web site, http://ds.state.gov/dipimmunities/dichart.pdf.