A Staff Report from the Straight Dope Science Advisory Board

What's the story on diplomatic immunity?

November 1, 2005

Dear Straight Dope:

What is diplomatic immunity? I've heard it bandied about in books and TV shows and movies, where it's generally given as the reason that the good-guy cop can't arrest the bad guy, even though the bad guy has just committed some heinous crime. The bad guy generally delivers some line like "You can't touch me! I've got diplomatic immunity!" Does that mean that being a diplomat in a foreign country gives people the right to commit any crime they want, without fear of legal retribution? Surely not, or diplomat would be a much more popular career choice.--

There are several kinds of criminal immunity--that is, exemption from criminal liability granted by statute or process of law to an individual or group. For example, people who have been acquitted of a crime are immune from a second prosecution for that same crime--protection against double jeopardy is guaranteed by the Fifth Amendment. A judge may grant witnesses immunity from prosecution in exchange for testimony.

Diplomatic immunity is another such exemption. It applies to diplomats in their host countries, ensuring that they can't be arrested or criminally prosecuted by the host country for any violations of local law.

In the United States, the State Department maintains a twenty-four-hour hotline for use by local law enforcement to verify the current status of any arrestee who claims diplomatic immunity. Once his identity as a diplomat is established, he must be released. The most the host country can do is expel him, declaring him persona non grata, or a person no longer welcome. If he remains in the country after being "PNG'd," his diplomatic status may be revoked and he may be arrested like a mere mortal.

Before you start studying for the Foreign Service exam while chuckling evilly and twisting your moustache, however, you should know diplomatic immunity isn't quite the free pass it appears to be.

First and foremost, the diplomat is still covered by the laws of his home country, and may be prosecuted under those laws for any crimes he commits in the host country. Moreover, the privilege of immunity belongs to the home country, not the individual diplomat. The home country may choose to waive immunity for one of its diplomats, leaving him open to prosecution by the host country. This was a lesson learned by Gueorgui Makharadze, the number-two ranking officer in the Republic of Georgia's embassy in Washington. In January of 1997, Makharadze sped his car through the streets of the District of Columbia at up to 80 MPH, ultimately causing an accident that injured four people and killed a sixteen-year-old girl. He was found to have a blood-alcohol level of 0.15, 150% of DC's then limit. Makharadze was released from custody because he was a diplomat, but the U.S. government asked the Georgian government to waive his immunity and they agreed. Makharadze was tried and convicted of manslaughter by the U.S. and sentenced to seven to twenty-one years in prison.

The system doesn't always work flawlessly. Salem Al-Mazrooei was arrested in Virginia after he arranged to meet the thirteen-year-old girl he'd been chatting with on the Internet at a Bedford shopping mall. According to Bedford sheriff's deputies, Al-Mazrooei had made some "very graphic" requests for sex to the seventh-grader. As it happened, the person on the other end of the keyboard was neither a seventh-grader nor a girl but rather a Bedford sheriff's deputy. The case turned sour when Mr. Al-Mazrooei was arrested and immediately asserted diplomatic immunity -- he was a Saudi Arabian diplomat assigned to the Saudi embassy in Washington. After the embassy was informed of the charges, Mr. Al-Mazrooei was removed from his job but permitted to return to Saudi Arabia. He remains outside of U.S. jurisdiction to this day.

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.

The concept of diplomatic immunity--safe passage for diplomats in enemy territory--has existed in some form for centuries. Messengers between armies, approaching under a white flag, have long been understood to be safe from attack. The principle involved wasn't law or treaty so much as self-interest: if we skewer their emissaries, they'll skewer ours.

In late 1814, the Congress of Vienna convened for the purpose of straightening out national borders after the Napoleonic wars. Composed primarily of ambassadors from the major European powers, the group took time out from redrawing Europe's map to pass a resolution noting the strong protection that ambassadors were owed while in host countries. This vision would be formalized over a century later in the Vienna Convention on Diplomatic Relations, a UN-based conference and treaty to which the United States is a signatory.

The Vienna Convention classifies emissaries according to three types of assignment: embassy, consular, and international organization. The embassy is the primary diplomatic presence established by one country in another that it recognizes. The chief official of the embassy is the ambassador, who serves as his country's official representative to the host country.

A nation has only one embassy per foreign country, usually in the capital, but may have multiple consulate offices, generally in locations where many of its citizens live or visit. The consulate, which is headed by a consul, provides government services to individuals abroad, most having to do with travel. The consulate issues visas to foreign nationals, issues and renews passports for its own citizens, and assists its citizens traveling abroad with issues of marriage, divorce, adoption, legal emergencies, and the like. A consulate may be managed not by a career foreign service officer but a prominent national; such posts are of limited authority and the persons holding them are called honorary consuls.

A country's representation to an international organization, such as the United Nations or the European Union, is called a mission or a delegation. A mission may be headed by an ambassador or someone of lower rank called simply the chief of mission.

I go into all this detail because the protections extended to diplomats under the Vienna Convention vary depending on rank and assignment--an ambassador can get away with things the janitor can't. The State Department has helpfully summarized the rules in a table at http://www.state.gov/m/ds/immunities/c9127.htm:

To emphasize, under no circumstances is the diplomat free from all legal constraints: even if his host country can't get him, his home country always can. For what it's worth, when Arjen Rudd, the corrupt South African consul in Lethal Weapon 2, chuckles at Sergeant Riggs, "You couldn't even issue me a traffic ticket," we can see from the table that he's wrong--even an ambassador can be issued a traffic ticket.

Good luck on that Foreign Service exam.

Sources:

Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities, U.S. Department of State

"Diplomat Sentenced in Teen's Death; Georgian Gets 7 to 21 Years for Drunk-Driving Crash in D.C." Bill Miller, Washington Post, Dec 20, 1997, p. A.01

"Diplomat Flees U.S. to Avoid Sex Charges," Tara Young, Washington Post, Saturday, March 5, 2005,  p. B03

Vienna Convention on Diplomatic Relations, 1961. See text at http://www.un.org/law/ilc/texts/diplomat.htm

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