How Far Does Diplomatic Immunity Go?

Cuban diplomats being expelled from their embassy in Washington, D.C.
U.S. Orders Expulsion of 15 Cuban Diplomats From Washington DC Embassy. Olivier Douliery / Getty Images

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. Often criticized as a “get away with murder” policy, does diplomatic immunity really 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 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 [S]tate.” 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.

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.

How the US Deals With Wrongdoing Diplomats

Whenever a visiting diplomat or other person granted diplomatic immunity living in the United States is accused of committing a crime or faces a civil lawsuit, the U.S. Department of State may take the following actions:

  • The State Department notifies the individual’s government of the details surrounding the criminal charges or civil suit.
  • The State Department may ask the individual’s government to voluntarily waive their diplomatic immunity, thus allowing the case to be handled in a U.S. court.

In actual practice, foreign governments typically agree to waive diplomatic immunity only when their representative has been charged with a serious crime not connected to their diplomatic duties, or has been subpoenaed to testify as a witness to a serious crime.

Except in rare cases — such as defections — individuals are not allowed to waive their own immunity. Alternatively, the accused individual’s government may choose to prosecute them in its own courts.

If the foreign government refuses to waive their representative’s diplomatic immunity, the prosecution in a U.S. court cannot proceed. However, the U.S. government still has options:

  • The State Department can formally ask the individual to withdraw from his or her diplomatic post and leave the United States.
  • In addition, the State Department often cancels the diplomat’s visa, barring them and their families from returning to the United States.

Crimes committed by members of a diplomat’s family or staff may also result in the diplomat’s expulsion from the United States.

But, Get Away With Murder?

No, foreign diplomats do not have a “license to kill.” The U.S. government can declare diplomats and their family members “persona non grata” and send them home for any reason at any time. In addition, the diplomat’s home country can recall them and try them in local courts. In cases of serious crimes, the diplomat’s country can waive immunity, allowing them to be tried in a U.S. court.

In one high-profile example, when the deputy ambassador to the United States from the Republic of Georgia killed a 16-year-old girl from Maryland while driving drunk in 1997, Georgia waived his immunity. Tried and convicted of manslaughter, the diplomat served three years in a North Carolina prison before returning to Georgia.

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 favorable 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.