Diplomatic Immunity

Diplomatic immunity is a status granted to diplomatic personnel that

exempts them from the laws of a foreign jurisdiction.
The Vienna Convention of Diplomatic Relations (1961), which most states
have ratified, offers diplomats acting as officials of state almost total protection
from subjection to criminal, administrative, and civil laws belonging to the country
in which the diplomatic mission is located. Diplomats assigned to missions located
in foreign countries remain subject to the laws of their home countries. The
diplomat's country of origin has prerogative over whether or not a host country
may prosecute a diplomat under its (i.e. 'foreign') laws
(https://www.law.cornell.edu/wex/diplomatic_immunity).

The History of Diplomatic Immunity

This is a massive book in more than one sense. It is over 700 pages long,
including an invaluable bibliography which itself stretches over 70 pages. While
dwelling chiefly on the Western tradition, it also takes in the Ottoman Empire and
the Far East. It begins in ancient times (though having less on the second
millenium BC than Professor Raymond Cohen would no doubt like) and comes
right up to the present. Though inevitably it is chiefly a work of synthesis, the
argument is also strengthened by fresh research where gaps are left by the current
literature. It is, finally, a work of massive learning. There are too many quotations
for my taste and this occasionally clouds the argument, but in general it is also well
organised, clearly written, and regularly adorned by a neat turn of phrase. As a
result, I have little doubt that it will soon be a standard work of reference on its
subjects. I say ‘subjects’ rather than ‘subject’ because it is a book which will be of
great interest not only to diplomatic lawyers but to theorists of diplomacy,

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historians of diplomacy, and historians of international relations generally. I found
the book especially useful on the right of chapel and the vexed issue of diplomatic
asylum, as well as on Zouche, Bonaparte, and Laurent. I have, however, a few
reservations.

To begin with there is the method which the Freys employ. By choosing to
proceed by piling example on top of example, and case on top of case, they have
produced a book which resembles more an early work of positive law than one of
history. Perhaps partly as a result of this, certain key ideas and historical changes,
together with their explanations, tend to get either submerged or handled a little
loosely. For example, the acceptance into diplomatic law of the inviolability of the
diplomat’s house, as opposed to his person, which was a key development of the
early seventeenth century, creeps in almost unnoticed on page 145. More seriously,
the principle of reciprocity, which stipulates that if one state acts in a certain way
towards a second the latter is likely to reply in kind, is sometimes made to bear too
heavy an explanatory burden in this book.

In the very first paragraph there is a splendid sentence, elegant and

incontrovertible: ‘Rooted in necessity, immunity was buttressed by religion,
sanctioned by custom, and fortified by reciprocity’. Reciprocity, then, meaning in
this case ‘beat up our envoys and we’ll beat up yours’, is just one prop to immunity
and not the most important. This is not surprising since in many bilateral
relationships ambassadors have been sent but not received, and this remains true
today; even in the pre-telegraphic era, diplomacy did not require ambassadors
at both ends of a relationship. However, there are points in the course of this
ambitious book where the authors tend to forget this. Thus diplomacy in the early
Roman republic is spoken of as ‘predicated on the idea of reciprocity‘ (pp. 6, 61,

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emphasis added); of the mediaeval period we find it observed that ‘whether in
Europe, the Middle East, or Asia, principals, that is, those who sent another, looked
to custom, law, religion, and most obviously the threat of reciprocal action to
safeguard their emissaries’ (p. 76, emphasis added); while ‘fundamental was the
underlying issue of reciprocity’ during the Cold War (p. 487, emphasis added). I
am not entirely convinced by any of this, and we might turn to the handling of the
Ottoman Empire by the Freys to point up the dangers of attaching great historical
significance to reciprocity without firm supporting evidence, that is, of relying too
much on a priori reasoning.
In the chapter dealing with Turkey, the authors dwell on the mistreatment of
ambassadors in Istanbul until the end of the seventeenth century. It is true that they
emphasise, rightly, the military confidence and religious convictions of the
Ottomans in accounting for this. However, noting that until the reign of Selim III at
the end of the eighteenth century the Ottomans received but did not send resident
ambassadors, they cannot resist adding that the maltreatment of diplomats in
Istanbul was also a result of the absence of the constraining ‘force of reciprocity’
(pp. 397, 401). But this is assumed rather than proved. Indeed, it is difficult to
avoid the conclusion that the authors have been led to believe that the treatment of
ambassadors in Istanbul must have been bad because of the absence of reciprocity.
In fact, while occasionally brutal and humiliating, the Ottoman treatment of
ambassadors was not markedly worse than that occasionally meted out to them by
any number of European governments, many instances of which are actually
documented in this book; and in any case I have to say that I found the account
here – relying heavily on the examples quoted in nineteenth century sources –
somewhat exaggerated. (It is not true, incidentally, that ‘the first ambassador to be
given his passport instead of a cell after war was declared was the Russian
ambassador Andrei Iakovlevich Italinskii in 1806’. British Foreign Office papers

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record that Baron d’Herbert, the imperial internuncio in Istanbul, was permitted to
return to Vienna despite Austria’s announcement at the beginning of 1788 that it
was to join in war with Russia against the Ottoman Empire.) If these diplomats
were routinely treated as badly in Istanbul prior to the eighteenth century as the
Freys suggest, the European powers would hardly have been so keen to maintain
permanent representatives in that city, where fire, plague, and periodic janissary
rampages (not to mention the journey there and back) were themselves major
hazards. As a rule, the Ottomans treated ambassadors well, even subsidising their
embassies until long after this custom was abandoned in Europe – despite the fact
that they were not constrained by the ‘force of reciprocity’. The Ottomans did this
because they found these embassies flattering, valuable sources of information and
alluring gifts, important to commerce (which included maintaining order among
their nationals trading within the empire), useful mediators, and indispensable to
the manipulation of the balance of power. This case shows, I think, that the
significance of reciprocity – or its absence – here as elsewhere, can easily be over-
estimated.
The very focus of this book on diplomatic immunity, with its attention
drawn naturally to certain dramatic breaches and abuses of recent years, also
encourages the authors to adopt an unnecessarily bleak view of the late twentieth
century and – by implication – the future, including the future of diplomacy.
‘Diplomats and the New Barbarism’ is the title of the penultimate chapter and in its
conclusion they say that ‘The erosion of the position of the diplomat was …
symptomatic of the larger corrosion of the international system and the failure to
forge an international community’. And again: ‘Little evidence surfaced in the late
twentieth century of a common will or even a commitment to observe basic
international norms, such as diplomatic inviolability’ (p. 526). This is going too
far. Surely what is more worthy of note is how well the fabric of diplomacy has

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held up in the circumstances of the shift from an essentially European to a world
system, and how indeed many other strands of this fabric have been strengthened
since the 1960s. Perhaps this is too complacent but what I miss in the last chapters
of this book, among other things, are even passing asides either to the reduced
inclination of states to sever diplomatic relations for propaganda purposes or to the
unambiguous acceptance since 1963 that in any case the severance of diplomatic
relations does not result in the severance of consular relations. (There is nothing on
consular immunities at all in the book, though in practice consulates often serve
‘diplomatic’ ends.) Nor do the Freys make any reference to the enthusiasm with
which new states of recent years have created their own diplomatic services and
sought outside help in their training to conventional standards, to the invention and
increased employment of interests sections, the triumph of ‘consensus decision-
making’ in multilateral diplomacy, or to the huge improvements in
telecommunications which have made diplomatic missions so much more flexible
instruments of national policy. These developments, among others, have to be set
on the other side of the ledger when ‘the position of the diplomat’ and the general
health of the world diplomatic system is being considered (Geoff Berrdige,
https://www.diplomacy.edu/resource/the-history-of-diplomatic-immunity/).

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.
In international law, diplomatic immunity is governed by the Vienna
Convention on Diplomatic Relations 1961 (VCDR), to which almost every state is
a party. In essence, a diplomat in post is completely immune from criminal
proceedings, and almost completely immune from civil proceedings (with
exceptions not relevant here).

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 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 (https://www.lowyinstitute.org/the-
interpreter/diplomatic-immunity-time-change-rules).

 What would have to happen in order for someone who has been granted
diplomatic immunity to face prosecution?

The only way for somebody who has been granted diplomatic immunity to face
prosecution would be for their country of employment to waive their immunity. In
the case of Harry Dunn, the US would have to waive the suspect’s immunity if
they were to face prosecution in the UK.

 Can diplomatic immunity be provided to anyone who isn’t a diplomat?

Diplomatic immunity can also be provided to a diplomat’s family members and

spouses.

In this case, diplomatic immunity has been given to the wife of a US diplomat.

 What punishment, if any, can people with diplomatic immunity face?

They cannot face prosecution, but they can be expelled from the country they are
working in.

 If you have diplomatic immunity, are you allowed to break whatever rules
you like?

Under the terms of the VDCR treaty, diplomats are asked to obey the rules of the
host country.

If they do not, they face expulsion from the country they are working in.

 When has diplomatic immunity been granted before?

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One of the most famous cases involving diplomatic immunity was the death of
Metropolitan Police officer Yvonne Fletcher, who was shot dead from the window
of the Libyan embassy in 1984.

After an 11-day siege at the embassy, all those inside made their way out and were
granted diplomatic immunity.

The incident severed diplomatic relations between the UK and Libya.

In December last year, the Foreign Office said a diplomat had been expelled from
the UK after allegations of two rapes and one attempted rape from 2017.

The diplomat involved was thrown out of the country after their home country
rejected the request to waive their immunity.

Other allegations relating to 2017 included one report of sexual assault involving
an individual representing Algeria, one of blackmail (Egypt), and one possession
of a firearm with intent to injure (Cambodia).

 Are there examples of when immunity has been waived?

In 2003, Colombian diplomat Jairo Soto-Mendoza was forced to stand trial in the
UK accused of killing a man who mugged his son after his home country waived
his immunity.

It took until four months after the incident for Mr Mendoza’s immunity to be
waived.

He was found not guilty of murder and manslaughter.

In 1997, Georgian diplomat Gueorgui Makharadze had his immunity waived by his
government after he caused a five-car pile-up in Washington DC, resulting in the
death of a teenage girl (https://www.itv.com/news/2019-10-07/diplomatic-
immunity-what-is-it-and-when-has-it-been-used-before).

Diplomats don't always enjoy immunity

Indonesian courts have started to deal with diplomatic and consular

immunity issues. In 2013, there were two cases related to termination of

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employment of two local staff at the Brazilian Embassy in Jakarta and the US
Consulate in Medan. Being Indonesian nationals, the two embassy employees filed
a lawsuit with the Industrial Relations Court (PHI) against the embassies,
demanding severance payments and both eventually won. The issue of diplomatic
and consular immunity has, therefore, come to the fore. Given that the cases
involved diplomatic missions and consular posts that essentially are governed by
international law, the question usually raised in the first place is whether the
employment contract given by these missions may be subjected to the domestic
Labor Law. In developed countries, judicial decisions on this matter have been
developing rapidly. As the result of the increasing international concern on labor
issues, European countries have deviated from an absolute immunity approach in
determining the case and turn to a more restrictive approach. A number of
Indonesia's embassies in Europe have encountered legal problems arising from
such diplomatic restrictions. Restrictive immunity requires states to differentiate
the treatment toward an embassy or consulate on one hand and that of diplomats or
consuls on the other. European countries treat embassies or consulates as ordinary
business entities. Therefore, there are certain conditions that mean both embassies
and consulates are public institutions not entitled to immunity. Those conditions
depend on each legal system, but only to the extent permitted by international law.
For example, on July 19, 2012, in the case concerning the Algerian Embassy's
driver in Berlin, the European court once declared that the Embassy as the
employer has to be treated as an establishment when employing a person, provided
that the job carried out is not an exercise of public authority. In Austria, the
domestic labor law will not prevail when the employment contract entered into is
between a diplomat and an individual who is not a national of Austria, or otherwise
not holding a permanent resident permit. These conditions are recognized by
international law. It proves that European countries have established clear rules in
terms of what conditions the foreign representatives may not invoke diplomatic
immunity before the domestic court. More importantly, those conditions are in line
with the norms provided by international law. The above-mentioned cases
concerning the Brazilian Embassy in Jakarta and the US Consulate in Medan, are
Indonesia's landmark cases in terms of the legal status of a diplomatic
mission/consular post as an employer. In the Brazilian Embassy case, the Court
upheld the embassy's diplomatic immunity. However, the Court also referred to a
clause in the employment contract entered into between the parties, which in
principle expressed the agreement to be governed by Indonesian law. On the basis
of that clause, the Court declared that it has jurisdiction to determine the merits. By
following this logic, the Court has somewhat been erroneous. The outcome is right,
but the reason that led to the outcome is an anomaly. The Court should not uphold
diplomatic immunity while it declares that it has jurisdiction over the matter. This
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is a contradiction in terms. It would be more logical for the Court to argue that the
employment contract has overruled the diplomatic immunity; though this also
leads to the further question as to whether engaging in private activities will
automatically discharge the diplomatic immunity. In the US Consulate case, the
US submitted that the employer, a consular functional officer, shall not be
amenable to jurisdiction of the Indonesia's judicial or administrative authorities.
The US Consulate also submitted that it has no separate legal personality from the
US and therefore could not be sued in an Indonesian domestic court. In response,
the Supreme Court stated that since the matter brought is essentially the
termination of employment which took place in the territory of Indonesia,
therefore, Law No. 13 of 2003 on labor should be applied. The decision to ignore
the immunity of the US Consulate under this case is not controversial since other
countries' courts would issue a similar decision. However, the Supreme Court
avoided addressing international law on this matter. In contrast, the Vienna
Convention 1961/1963 on Diplomatic/Consular Relations shows not all
employment contracts signed in the territory of the receiving state should be
subjected to the law of that state. Article 43 of the Vienna Convention on Consular
Relations 1963 clearly provides that a contract concluded by a consular officer as
an agent of the sending state shall be immune from the jurisdiction of receiving
states. Article 11 of UN Convention on Jurisdictional Immunities of States and
Their Property 2004 also provides that if the relation has a public nature or if the
employer is entitled to diplomatic immunity, national law cannot be applied. The
Supreme Court should have argued that the employment contract between the US
Consulate and its employee in a given case was purely carried out by the consulate
as a legal entity (instead of a consular officer) and not having public character, so
that under international law the immunity could not be invoked. Notwithstanding
the flaws, the position to apply restrictive immunity toward diplomatic missions
and consular posts is worth appreciating. This means that Indonesia has been in
line with the development in international law in terms of immunity. However, the
legal reasoning constructed in those decisions should have also taken into account
the norms available in international law; thus dissemination toward Indonesia's
legal practitioners regarding international law on diplomatic immunity including its
exceptions is crucial (Damos Agusman and Yanuar Pribadhie,
https://www.thejakartapost.com/news/2014/02/06/diplomats-don-t-always-enjoy-
immunity.html).

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