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WHAT IS DIPLOMATIC IMMUNITY?
Mr. Hays is the Chief of Community Relations, Diplomatic Motor Vehicle (DMV) Office at the U.S. Department of State. He joined DMV in 1986 and has designed and implemented the Department’s driver licensing and driver control programs. He currently serves as nationwide coordinator for the DMV’s fraud prevention and law enforcement training efforts, and also serves as the DMV’s legislative liaison. Prior to that, he spent 20 years with the U.S. Army in military intelligence working primarily in the fields of counter-terrorism and technical intelligence. He holds a Bachelor’s Degree in Slavic Studies granted by the University of Alabama in Huntsville, and has completed graduate studies in Soviet Studies at the Joint Military Intelligence College, Washington, DC. Diplomatic immunity is a principle of international law by which certain foreign government officials are not subject to the jurisdiction of local courts and other authorities for both their official and, to a large extent, their personal activities. The principle of diplomatic immunity is one of the oldest elements of foreign relations. Ancient Greek and Roman governments, for example, accorded special status to envoys, and the basic concept has evolved and endured until the present. As a matter of international law, diplomatic immunity was primarily based on custom and international practice until quite recently. In the period since World War II, a number of international conventions (most noteworthy, the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations) have been concluded. These conventions have formalized the customary rules and made their application more uniform. Notwithstanding the antiquity of the concept of diplomatic immunity, its purpose is often misunderstood by the citizens of this and other countries. Occasional abuses of diplomatic immunity, which are brought to public attention, have also served to prejudice public attitudes toward this practice. Dealing with the concept of immunity poses particular problems for law enforcement officers who, by virtue of their oath and training, are unaccustomed to granting special privileges or concessions to individuals who break the law. On the other hand, police officers who understand the importance of diplomatic immunity may be inclined to be overly generous in its application if they do not have a full understanding of its parameters.
The special privileges and immunities accorded foreign diplomatic and consular representatives assigned to the United States reflect rules developed among the nations of the world regarding the manner in which civilized international relations must be conducted. The underlying concept is that foreign representatives can carry out their duties effectively only if they are accorded a certain degree of insulation from the application of standard law enforcement practices of the host country. The United States benefits greatly from the concept as it protects U.S. diplomats assigned to countries with judicial systems far different from our own. While customary international law continues to refine the concepts of diplomatic and consular immunity, the basic rules are currently embodied in international treaties. These treaties have been formally adopted by the United States and are, therefore, pursuant to the U.S. Constitution, ‘the supreme law of the land." The U.S. Government is legally bound to ensure that such privileges and immunities are respected by its states and municipalities. U.S. law regarding diplomatic immunity has its roots in England. In 1708, the British Parliament formally recognized diplomatic immunity and banned the arrest of foreign envoys. In 1790, the United States passed similar legislation, which provided absolute immunity for diplomats, their families and servants, as well as for lower ranking diplomatic mission personnel. This 1790 law remained in force until 1978, when the present Diplomatic Relations Act (22 U.S.C. 254) was enacted to replace it. The principal purpose of the 1978 Act was to bring U.S. law into line with the 1961 Vienna Convention on Diplomatic Relations (which entered into force for the United States in 1972). The 1978 Act imposed a more precise regime and reduced the degree of immunity enjoyed by many persons at diplomatic missions. On a practical level, failure of the authorities of the United States to respect fully the immunities of foreign diplomatic and consular personnel may complicate diplomatic relations between the United States and the other country concerned. It may also lead to harsher treatment of U.S. personnel abroad. The principle of reciprocity has, from the most ancient times, been integral to diplomatic and consular relations. It should he emphasized that even at its highest level, diplomatic immunity does not exempt diplomatic officers from the obligation of conforming with national and local laws and regulations. Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions. The purpose of these privileges and immunities is not to benefit individuals, but to ensure the efficient and effective performance of their official missions on behalf of their governments. This is a crucial point for law enforcement officers to understand in their dealings with foreign diplomatic and consular personnel. While police officers are obliged, under international customary and treaty law, to recognize the immunity of the envoy, they must not ignore or condone the commission of crimes. As is explained in greater detail below, adherence to police procedures in such cases is often essential in order for the United States to formulate appropriate measures through diplomatic channels to deal with such offenders. Handling Incidents It is the policy of the U.S. Department of State, with respect to The U.S. Department of State will, in all incidents involving persons with immunity from criminal jurisdiction, request a waiver of that immunity from the sending State if the prosecutor advises that but for such immunity he or she would prosecute or otherwise pursue the criminal charge. If the charge is a felony or any crime of violence, and the sending State does not waive immunity, the U.S. Department of State will require that person to depart the United States and not return, but to submit to the jurisdiction of the court with subject matter jurisdiction over the offense. Upon departure, the Department will request that law enforcement issue a warrant for the person’s arrest so that the name will be entered in NCIC.
General Procedures The vast majority of persons entitled to privileges and immunities in the United States are judicious in their actions and keenly aware of the significance attached to their actions as representatives of their sending State. On occasion, however, one of them may become involved in criminal misconduct. The more common violations are traffic (illegal parking, speeding, reckless driving, and DWI), shoplifting, and assault. Whatever the offense or circumstances of contact, law enforcement officers should keep in mind that such persons are official representatives of foreign governments who are to be accorded the maximum degree of respect possible under the circumstances. It is not an exaggeration to say that police handling of incidents in this country may have a direct effect on the treatment of U.S. diplomatic or consular personnel abroad.
Traffic Enforcement Stopping a mission member or dependent and issuing a traffic citation for a moving violation does not constitute arrest or detention and is permitted. However, the subject may not be compelled to sign the citation. In all cases, officers should follow their departmental guidelines and document the facts of the case fully. A copy of the citation and any other documentation regarding the incident should be forwarded to the U.S. Department of State as soon as possible. For "must appear" offenses, the Department uses the citation and any report as the basis for requesting an "express waiver of immunity." Individuals cited for pre-payable offenses are given the option of paying the fine or obtaining a waiver in order to contest the charge. In serious cases (e.g., DWI, DUI, personal injury, accidents), telephonic notification to the U.S. Department of State is urged. The officer should follow his or her department’s guidelines with respect to the conduct of a field sobriety investigation. If appropriate, standardized field sobriety testing should be offered and the results fully documented. The taking of these tests may not be compelled. If the officer judges the individual too impaired to drive safely, the officer should not permit the individual to continue to drive (even in the case of diplomatic agents). Depending on the circumstances, there are several options. The officer may, with the individual’s permission, take the individual to the police station or other location where he or she may recover sufficiently to drive; the officer may summon, or allow the individual to summon, a friend or relative to drive; or the police officer may call a taxi for the individual. If appropriate, the police may choose to provide the individual with transportation. The U.S. Department of State’s Diplomatic Motor Vehicle Office maintains driver histories on all its licensees and assesses points for moving violations. Drivers who demonstrate a pattern of bad driving habits or who commit an egregious offense such as DWI, are subject to having their licenses suspended or revoked as appropriate. This policy can be enforced effectively only if all driving infractions (DWI, DUI, reckless driving, etc.) are reported promptly to the U.S. Department of State. It is U.S. Department of State policy to assign "points" for driving infractions and to suspend the operators license of foreign mission personnel who abuse the privilege of driving in the United States by repeatedly committing traffic violations and demonstrating unsafe driving practices. The property of a person enjoying full criminal immunity, including his or her vehicle, may not be searched or seized. Such vehicles may not be impounded or "booted" but may be towed the distance necessary to remove them from obstructing traffic or endangering public safety. If a vehicle that is owned by a diplomat is suspected of being stolen or used in the commission of a crime, occupants of the vehicle may be required to present vehicle documentation to permit police verification of the vehicle’s status through standard access to NLETS (use access code US). Should the vehicle prove to have been stolen or to have been used by unauthorized persons in the commission of a crime, the inviolability to which the vehicle would normally be entitled must be considered temporarily suspended, and normal search of the vehicle and, if appropriate, its detention, are permissible. Vehicles registered to consular officials, including those with full criminal
immunity, and consulates are not inviolable and may be towed, impounded, or
booted in accordance with local procedures. The U.S. Department of State should
be notified if a consular vehicle has been detained or impounded so that its
Office of Foreign Missions can follow up with the proper consular official or Federal license plates issued by the U.S. Department of State are not the property of a diplomat or of a diplomatic mission and remain the property of the Department at all times. As such, they must be surrendered to the U.S. Department of State when recalled. Similarly, these license plates may not be transferred from the vehicle to which they were assigned by the U.S. Department of State without the authorization of its Office of Foreign Missions. In cases where the officer at the scene has determined that the vehicle is being operated without insurance and/or has verified with the U.S. Department of State that the vehicle bearing U.S. Department of State license plates is not the vehicle for which those plates were intended, the Department may request that the local law enforcement agency impound the plates and return them to the U.S. Department of State. Such impoundment should only be upon the request of the U.S. Department of State. Subsequent detention of the vehicle must conform to the guidelines above. Conclusion It is important that law enforcement and judicial authorities of the United States always treat foreign diplomatic and consular personnel with respect and with due regard for the privileges and immunities to which they are entitled under international law. Any failure to do so has the potential of casting doubt on the commitment of the United States to carry out its international obligations or of negatively influencing larger foreign policy interests. As stated above, however, appropriate caution should not become a total "hands off’ attitude in connection with criminal law enforcement actions involving diplomats. Foreign diplomats who violate traffic laws should be cited. Allegations of serious crimes should be fully investigated, promptly reported to the U.S. Department of State, and procedurally developed to the maximum permissible extent. Local law enforcement authorities should never be inhibited in their efforts to protect the public welfare in extreme situations. The U.S. Department of State should be advised promptly of any serious difficulties arising in connection with diplomatic or consular personnel. Law enforcement and judicial authorities should feel free to contact the U.S. Department of State for general advice on any matter concerning diplomatic or consular personnel. For further information call Clay Hays at 202-895-3519.
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Presented by Mr. Clay Hays at the Las Vegas Conference in March 2000.
The term diplomatic immunity is popularly, and erroneously, understood to
refer to special protections afforded all employees of foreign governments who
are present in the United States as official representatives of their home
governments. Law enforcement officials, however, must have a more sophisticated
understanding of the concept. There are over 100,000 representatives of foreign
governments, including dependents, in the United States. Many of these persons
may be entitled to some degree of immunity under international law. Some of
these persons are members of diplomatic missions, others are assigned to
consular posts, and still others are employees of international organizations or
members of national missions to such international organizations. For each of
these categories of persons, particular rules apply and, even within these
categories, different levels of immunity may be accorded to different classes of
persons. Most of these persons are assigned to Washington, D.C., and New York
City, but large numbers are assigned in other major cities around the country.
Moreover, nearly all of these persons are free to travel around the country
either on official business or for pleasure.
When a law enforcement officer is called to the scene of a criminal incident
involving a person who claims diplomatic or consular immunity, the first step
should be to verify the status of the suspect. Should the person be unable to
produce satisfactory identification and the situation be one that would normally
warrant arrest or detention, the officer should inform the individual that he or
she will be detained until his or her identity can be confirmed. In all cases,
including those in which the suspect provides a State Department issued
identification card, the law enforcement officer should verify the status with
the U.S. Department of State or in the case of the United Nations (UN)
community, with the U.S. Mission to the United Nations. Once the status is
verified, the officer should prepare his or her report, fully describing the
details and circumstances of the incident in accordance with normal police
procedures. If the suspect enjoys personal inviolability, he or she may not be
handcuffed, except when that individual poses an immediate threat to safety, and
may not be arrested or detained. Once all pertinent information is obtained,
that person must be released. A copy of the incident report should be faxed or
mailed to the U.S. Department of State in Washington, D.C., or to the U.S.
Mission to the UN in New York in cases involving the UN community, as soon as
possible. Detailed documentation of incidents is essential to enable the U.S.
Department of State to carry out its policies.