DIPLOMATIC IMMUNITY AND PRIVILEGES

Dr. Lawson Victor Tom.

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What Is Diplomatic Immunity?

The term “diplomatic immunity” refers to a principle of international law that limits the degree to which foreign government and international organization officials and employees are subject to the authority of police officers and judges in their country of assignment.

Does this mean that foreign officials can get away with anything in the countries where they’re posted, as is often assumed? Not at all because their tenure in office shall end one day and the law will surely take its cause.

As a Diplomat in the Kingdom of New Atlantis, your duty is to abide by the law of the land and avoid corruption and stealing of public funds.

DIPLOMATIC IMMUNITY:

Diplomats who represent their country abroad enjoy diplomatic immunity. This protects them against prosecution in the receiving state for the entire period in which they hold their diplomatic post.

INTERNATIONAL AGREEMENTS ON DIPLOMATIC IMMUNITY:

The international agreements on diplomatic immunity can be found in the Vienna Convention on Diplomatic Relations. For instance, the receiving state is not permitted to prosecute diplomats, and must protect them, along with their families and property. The main aim of the Convention is to allow diplomats to carry out their work without hindrance in the receiving state. They can do this only if they do not face any risk of reprisals from the latter state’s government.

These agreements are vital to international relations. Diplomats attempt to ensure that relations between countries run as smoothly as possible. This sometimes means that they have to raise difficult issues in a direct manner. In doing so they take into account local customs and sensibilities in order to ensure that their efforts achieve the maximum effect.

The Vienna Convention allows Kona diplomats to pursue the interests of Kona citizens and businesses in foreign countries as effectively as possible, even where there are doubts about legal certainty. Dutch diplomats can also use their influence to remind receiving states of their international obligations, for instance to comply with human rights.

Diplomatic immunity: a two-way street
Diplomatic immunity only works if every country, including ours “KONA” abides by the rules. The way that the hosts treat foreign diplomats has an impact on how other countries treat our diplomats. We must treat foreign diplomats in Kona with the same respect and in accordance with the same standards that we expect of others abroad.

Diplomatic Immunity:
Not carte blanche for misconduct.

The Vienna Convention does not give diplomats carte blanche for misconduct. Diplomatic immunity does not place diplomats above the law and diplomats are obliged to conduct themselves in accordance with the laws of the receiving state. In the event of misconduct, however, only the sending state has the authority to take action, for instance by recalling the diplomat or waiving his/her diplomatic immunity.

Long ago, diplomats acted as a form of guarantee for the good conduct of the sending state. If that state did not conduct itself appropriately, its diplomat would be held responsible. Sometimes the consequences could even be fatal. Nowadays, the opposite applies: if a diplomat breaks the law, responsibility lies in the first place with the sending state.

INTERNATIONAL AGREEMENTS REMAIN INDISPENSABLE:

International agreements on diplomatic immunity continue to be indispensable. Diplomats are the personal representatives of their countries, and can therefore be the targets of irritation, aggression or even unbridled hatred, for instance when the receiving state disagrees with the sending state’s policies. All over the world, cases arise every day in which diplomats and representatives of international organisations require international legal protection.

Fortunately, some diplomats rarely fall victim to terrorism or any other kind of violent attack nowadays. One tragic exception was the killing of the First Secretary of the Dutch Embassy in Tunis in 1991. But there have been some close calls too, in which Dutch diplomats have been held hostage, assaulted or narrowly escaped bomb blasts or gunfire.

DIPLOMATIC IMMUNITY FOR EMBASSY PERSONNEL:

Diplomatic agents, that is, high ranking embassy officials (ambassadors, for example) who serve the function of dealing directly with their host country’s officials on behalf of their home country, Enjoy the highest degree of immunity. The same applies to their family members.

The police cannot detain them, arrest them, or search or seize their houses and other property. Diplomats cannot be prosecuted or otherwise forced to appear in criminal court. Nor can they be sued in civil courts, except for their personal (non-official) involvement in certain commercial, real estate, or inheritance-related matters, or for their separate professional activities.

So, for example: An ambassador who is sued for failing to pay her personal home mortgage premium might lose title to her house but cannot be forced to pay damages and may not be evicted.

A second category of embassy personnel, the administrative and technical staff (secretaries, for example) who directly support diplomatic activities, enjoy the same immunity from police actions and criminal courts, but a lesser degree of immunity from civil courts. They can be sued like anyone else, except for acts performed in connection with their official function. (No such exception applies to their family members.) Accordingly, an embassy secretary who fails to pay his personal home mortgage premium could not only lose his title but also be sued for damages; though he may not be evicted.

Yet other embassy employees (chauffeurs, for example), who only indirectly support diplomatic activities, enjoy the lowest degree of immunity. They have (either criminal or civil) immunity only for acts performed in connection with their embassy role. Their family members enjoy no immunity at all.

There are exceptions. In rare cases, both the second and third categories of embassy personnel above may enjoy as much immunity as diplomatic agents. But this happens only when the home country and the host country enter a special agreement (or treaty) for that purpose. Moreover, home country governments can waive diplomatic immunity.

Also, no immunity applies to embassy employees (or the family members of such employees) who are nationals or permanent residents of the host country.

DIPLOMATIC IMMUNITY FOR CONSULAR PERSONNEL:

Consular personnel generally enjoy less immunity than embassy personnel.

Consular officers (career consuls and other foreign government officials responsible for issuing travel documents, promoting commerce or tourism, and similar functions) enjoy full immunity for acts performed in connection with their official function. However, they are otherwise fully subject to criminal prosecution, except that they may be detained only in felony cases. (No such exception applies to their family members, who enjoy no immunity at all.)

Their property can be searched by police officers. They can also be sued like private citizens although they are prohibited (by international law) from engaging in commercial or professional activities outside their official functions.

Consulates, administrative and technical staff are not prohibited from engaging in commercial or professional activities outside their official functions. However, they enjoy immunity only for acts performed in connection with their official functions.

Other consular employees enjoy almost no immunity, except that they cannot be forced to appear as witnesses in U.S. courts for purposes of providing evidence about official consular affairs.

Here again, there are exceptions. Consular personnel may acquire almost as much immunity as diplomatic agents based on a special treaty between their home country and their host country.

No immunity applies to consular personnel who are nationals or permanent residents of the host country, except that honorary consuls enjoy immunity for acts performed in connection with their official functions.

Strictly speaking, the principle of diplomatic immunity does not apply to all foreign government or international organization officials and employees. When it does apply, it applies differently to different categories and subcategories of such persons and their families, depending on circumstances.

Note:

Diplomatic immunity is also to be distinguished from “sovereign immunity,” which applies to the person and property of foreign governments themselves and is not discussed in the present article.

WHAT DIPLOMATIC IMMUNITY DOES NOT MEAN!

Diplomatic immunity does not mean that its beneficiaries can do whatever they want and get away with it. Police officers are allowed to disregard it whenever necessary to prevent a grave crime or an imminent danger to public safety.

In cases of traffic violation, even though diplomatic vehicles may not be impounded, police officers are still allowed to issue citations, and host governments may suspend driving privileges.

In addition, host countries can request that home countries waive a crime suspect’s immunity. In the alternative, host countries may expel the suspect from their territory.

Finally, especially when the principle extends only to acts performed in connection with official functions, it is important to note that it is host country judges themselves who get to define the limits of immunity.

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