Diplomatic immunity
Diplomatic immunity is a principle of international law by which certain foreign government officials are recognized as having legal immunity from the jurisdiction of another country. It allows diplomats safe passage and freedom of travel in a host country, and affords almost total protection from local lawsuits and criminal prosecution.
Diplomatic immunity is one of the oldest and most widespread practices in international relations; most civilizations since antiquity have granted some degree of special status to foreign envoys and messengers. It is designed to facilitate relations between states by allowing their respective representatives to conduct their duties freely and safely, even during periods of political tension and armed conflict. Moreover, such protections are generally understood to be reciprocal and therefore mutually beneficial.
As a longstanding and nearly universal concept, diplomatic immunity has long been considered customary law; however, it was traditionally granted on a bilateral, ad hoc basis, leading to varying and sometimes conflicting standards of protection. Modern practices of diplomatic immunity have largely conformed to the 1961 Vienna Convention on Diplomatic Relations, which formally codified the legal and political status of diplomats, and has been ratified by the vast majority of sovereign states.
Diplomats may be declared persona non grata and expelled, although not prosecuted. A foreign official's home country may waive immunity and allow prosecution, typically if the official was involved in a serious crime unrelated to their diplomatic role. However, many countries refuse to waive immunity as a matter of course, and diplomats have no authority to waive their own immunity. Alternatively, the home country may prosecute the diplomat on its own accord or at the behest of the host country.
History
Prior to modern period
The concept of diplomatic immunity can be found in ancient Indian epics like Ramayana and Mahabharata, where messengers and diplomats were given immunity from capital punishment. In Ramayana, when the demon king Ravana ordered the killing of Hanuman, Ravana's younger brother Vibhishana pointed out that messengers or diplomats should not be killed, as per ancient practices.During the evolution of international justice, many wars were considered rebellions or unlawful by one or more combatant sides. In such cases, the servants of the "criminal" sovereign were often considered accomplices and their persons violated. In other circumstances, harbingers of inconsiderable demands were killed as a declaration of war. Herodotus records that when heralds of the Persian king Xerxes demanded "earth and water" of Greek cities, the Athenians threw them into a pit and the Spartans threw them down a well for the purpose of suggesting they would find both earth and water at the bottom, these often being mentioned by the messenger as a threat of siege. However, even for Herodotus, this maltreatment of envoys is a crime. He recounts a story of divine vengeance befalling Sparta for this deed.
A Roman envoy was urinated on as he was leaving the city of Tarentum. The oath of the envoy, "This stain will be washed away with blood!", was fulfilled during the Pyrrhic War.
Gregory of Tours recorded that Frankish envoys sent from King Childebert II to the Byzantine emperor Maurice were killed in Carthage by the prefect of the city, after one of the Franks had murdered a merchant. After Emperor Maurice heard about this, he ordered for several Carthaginians to be arrested and sent to Childebert for judgment on account of what happened to his envoys.
The arrest and ill-treatment of the envoy of Raja Raja Chola by the king of Kulasekhara dynasty, which is now part of modern India, led to the naval Kandalur War in AD 994.
The Islamic prophet Muhammad sent and received envoys and strictly forbade harming them. This practice was continued by the Rashidun caliphs who exchanged diplomats with the Ethiopians and the Byzantines. This diplomatic exchange continued during the Arab–Byzantine wars.
Classical Sharia called for hospitality to be shown towards anyone who has been granted amān. Amān was readily granted to any emissary bearing a letter or another sealed document. The duration of the amān was typically a year. Envoys with this right of passage were given immunity of person and property. They were exempt from taxation, as long as they did not engage in trade.
As diplomats by definition enter the country under safe conduct, violating them is normally viewed as a great breach of honor. Genghis Khan and the Mongols were well known for insisting on the rights of diplomats, and would often take terrifying vengeance against any state that violated these rights; at times razing entire cities in retaliation for the execution of their ambassadors. The Mongols invaded and destroyed the Khwarezmid Empire after their ambassadors were mistreated.
16th–19th century
The British Parliament first guaranteed diplomatic immunity to foreign ambassadors under the Diplomatic Privileges Act in 1709, after Count Andrey Matveyev, a Russian resident in London, was subjected to verbal and physical abuse by British bailiffs.Modern diplomatic immunity evolved parallel to the development of modern diplomacy. In the 17th century, European diplomats realized that protection from prosecution was essential to doing their jobs, and a set of rules evolved guaranteeing the rights of diplomats. These were still confined to Western Europe and were closely tied to the prerogatives of nobility. Thus, an emissary to the Ottoman Empire could expect to be arrested and imprisoned upon the outbreak of hostilities between his state and the empire. The French Revolution also disrupted this system, as the revolutionary state and Napoleon imprisoned numerous diplomats who were accused of working against France. More recently, the Iran hostage crisis is universally considered a violation of diplomatic immunity. Although the hostage takers did not officially represent the state, host countries are obligated to protect diplomatic property and personnel. On the other hand, during World War II, diplomatic immunity was upheld and the embassies of the belligerents were evacuated through neutral countries.
For the upper class of the 17th, 18th, and 19th centuries, diplomatic immunity was an easy concept to understand. The first embassies were not permanent establishments but actual visits by high-ranking representatives, often close relatives of the sovereign, or by the sovereign in person. As permanent representations evolved, usually on a treaty basis between two powers, they were frequently staffed by relatives of the sovereign or high-ranking nobles.
Warfare was a status of hostilities not between individual states but between their sovereigns, as well as the officers and officials of European governments, and armies often changed employers. Truces and ceasefires were commonplace, as was the fraternization between officers of opposing armies. If officers were taken prisoner, they usually gave their parole and were only restricted to a city away from the theatre of war. Almost always, they were given leave to carry their personal sidearms. Even during the French Revolutionary Wars, British scientists visited the French Academy. In such an atmosphere, it was easy to accept that some persons were immune to the laws. After all, they were still bound by strict requirements of honour and customs.
Modern era and Vienna convention
In the 19th century, the Congress of Vienna reasserted the rights of diplomats; they have been largely respected since then, as the European model has spread throughout the world. Currently, diplomatic relations, including diplomatic immunity, are governed internationally by the 1961 Vienna Convention on Diplomatic Relations, which has been ratified by almost every country in the world.In modern times, diplomatic immunity continues to provide a means, albeit imperfect, to safeguard diplomatic personnel from any animosity that might arise between nations. As one article put it: "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."
During the 18 April 1961 Vienna Convention, the Holy See was granted diplomatic immunity to its foreign ambassadors as well.
In the United States, the Diplomatic Relations Act of 1978 follows the principles introduced by the Vienna Conventions. The United States tends to be generous when granting diplomatic immunity to visiting diplomats, because a large number of US diplomats work in host countries less protective of individual rights. If the United States were to punish a visiting diplomat without sufficient grounds, US representatives in other countries could receive harsher treatment. If a person with immunity is alleged to have committed a crime or faces a civil lawsuit, the State Department asks the home country to waive immunity of the alleged offender so that the complaint can be moved to the courts. If immunity is not waived, prosecution cannot be undertaken. However, the State Department still has the right to expel the diplomat. In many such cases, the diplomat's visas are revoked, and they and their family may be barred from returning to the United States. Crimes committed by members of a diplomat's family can also result in dismissal.