Privilege of Diplomatic Immunity Facing Challenges From All Sides by John Shaw Diplomatic immunity is an ancient concept that is facing a raft of contemporary challenges. The very idea of diplomatic immunity is being questioned by segments of the public as they read sensationalóand often sensationalizedóaccounts of diplomats brazenly ignoring the laws of their host nations and appearing to be unaccountable for their actions. Not surprisingly, sometimes the media seize on the relatively rare diplomatic indiscretions and present them as if they are regular, everyday occurrences. And a truly tragic situation, such as the 1997 auto accident in which Gueorgui Makharadze, a Georgian diplomat, killed a 16óyearóold girl, angered many Americans and persuaded people across the world that diplomatic immunity was being soundly abused. That anger was softened only slightly when the Georgian government waived Makharadzeís immunity, and he was convicted and given a sevenótoó21óyear sentence. (Makharadze has served about 80 percent of his minimum sentence and is now up for parole in his home country, where he has been serving his sentence since 2000.) Diplomatic immunity is also being challenged, or at least c omplicated, by expansive interpretations of international law in which courts in some nations are willing to consider suits against diplomats and political leaders. The convening of ad hoc criminal courts for Rwanda and the former Yugoslavia and the impending creation of the International Criminal Court have raised intriguing questions about how diplomatic immunity will work in the future. Analysts, for example, have pondered legal developments in Belgium where lawsuits alleging human rights violations have been filed against more than a dozen past and present foreign leaders, including Yasser Arafat, Ariel Sharon, Saddam Hussein and Fidel Castro. A Belgian law, which was adopted in 1993 and expanded in 1999, allows the nationís courts to hear cases of certain alleged atrocities, including genocide and other crimes against humanity, that took place outside of Belgium and donít involve Belgians. Significantly, under the provisions of this law, Belgium doesnít recognize the immunity of foreign officials, even currently serving leaders. The Belgian government wants to amend this law so there is at least immunity for serving politicians. However, the World Court recently ruled that Belgium could not issue an arrest warrant for a Congolese diplomat because he had immunity at the time his crimes were allegedly committed, but the court did not strike down a controversial law that allows local judges to prosecute current and former heads of states in Belgium and around the world. Bruce Laingen, president of the American Academy of Diplomacy and a former American diplomat, said diplomatic immunity is a vital cornerstone of international affairs. ìDiplomatic immunity is a very important principal. Itís been around for a long, long time, and itís as important now as itís ever been. In fact, it may even be more crucial given the threat of rampant terrorism,î Laingen said. ìDiplomatic immunity is important in ensuring that the processes of diplomacy are conducted appropriately. When it is not respected there should be an uproar and expressions of outrage,î he added. Edith Ssempala, Ugandaís ambassador to the United States, said diplomatic immunity is a bedrock feature of international law and needs to be treated with care. ìDiplomatic immunity is an important privilege that should be protected. But itís also very important that diplomats and ambassadors respect this privilege and accept full responsibility,î Ssempala said. Diplomatic immunity is a concept that has been part of the fiber of international relations for thousands of years. In his classic book, ìDiplomacy,î Sir Harold Nicholson said this protection extends to the days of preóhistory when warring tribes wished to negotiate with each otheróif only to indicate that they had enough of the dayís battle and would like a pause to collect their wounded and bury their dead. ìThe practice must therefore have become established even in remotest times that it would be better to grant such negotiators certain privileges and immunities which were denied to warriors. The persons of such envoys or messengers, if properly accredited, must from the first have been regarded as in some way ësacrosanctí and from this practice derive those special immunities and privileges enjoyed by diplomatists today,î Nicholson wrote. Historians have observed that Thucydidesís writings show that by the fifth century B.C., the Greeks had elaborated a system of diplomatic relations and that members of diplomatic missions were accorded certain immunities and considerations. With the passage of the centuries, the idea of diplomatic immunity was refined, becoming a staple of international affairs. ìThe inviolability of ambassadors is sacred and acknowledged as such by all civilized peoples,î Julius Caesar wrote more than 2000 years ago. Diplomacy as a systemóand immunity as a core principalóevolved slowly over time. Nicholson pointed out that it was not until the 15th century that Italian states appointed permanent ambassadors and that diplomacy as a profession was estabmished. And it was not until after the Congress of Vienna in 1815 that the status and rules of diplomacy were set by international agreement. Chas W. Freeman Jr., a former American diplomat and author of several books on diplomacy, said that diplomatic immunity became a bedrock feature of international affairs for practical as well as lofty reasons. ìA wise government will treat the diplomats accredited to it well and protect them from harm. It will then be able to demand that foreign governments do the same for its diplomats,î he wrote. Freeman says that diplomatic immunity involves exemptions from the normal operations of the law of the host country to foreign diplomats to assure that their official duties will not be impeded. Among the most important of these protections are the inviolability of their persons and premises and their exemption from the taxation and civil and criminal jurisdiction of the local authorities, he said. In an important legal ruling on diplomatic immunity several years ago in the United States, U.S. District Judge T.S. Ellis III argued forcefully that diplomatic immunity is crucial to the United States and, by implication, to all nations. ìDiplomatic immunity is a valuable and integral feature of our relations with foreign nations. To protect United States diplomats from criminal and civil prosecution in foreign lands with differing cultural and legal norms as well as fluctuating political climates, the United States has bargained to offer that same protection to diplomats visiting this country,î he wrote. ìBecause not all countries provide the level of due process to which the United States citizens have become accustomed and because diplomats are particularly vulnerable to exploitation for political purposes, immunity for American diplomats abroad is essential. And understandably, reciprocity is the price paid for that immunity,î he said. Ellis observed that a certain amount of unfairness is inherent in the concept of diplomatic immunity: A diplomat may commit a serious and violent crime, yet be absolutely immune from prosecution in this country. Diplomatic immunity was established in its modern form by the Vienna Convention on Diplomatic Relations in 1961. In 1952, the United Nations General Assembly requested that the International Law Commission codify international law on ìdiplomatic intercourse and immunities.î The commission prepared a draft text by 1957, received comments from 21 nations, and then presented a draft treaty to the General Assembly in 1958. The UN Conference on Diplomatic Intercourse and Immunities convened in Vienna in 1961, made further revisions to the draft, and adopted the Vienna Convention for ratification by the member nations. Forty nations initially signed the treaty. Since then, more than 150 nations have become party to the treaty. ìPeoples of all nations from ancient times have recognized the status of diplomatic agents,î the treaty begins. It adds that diplomatic immunities and privileges are important to ìcontribute to the development of friendly relations among nations.î It asserts that the treatyís purpose ìis not to benefit individuals but to ensure the efficient performance of the functions of diplomatic relations.î The objective of the Vienna Convention is to ensure that the staffs of diplomatic missions are afforded the highest level of privileges an d immunities in the host country so they may effectively perform their duties. Under the Vienna Convention, there are three categories of people within each diplomatic mission, some of whom enjoy greater immunities than others. The first category is diplomatic agent, which refers to ambassadors and other diplomatic officers who generally have the function of dealing directly with host country officials. They enjoy the highest degree of immunity. Diplomatic agents have complete personal inviolability, which means that they may not be handcuffed (except in extraordinary circumstances), arrested or detained, and neither their property nor their residences may be entered or searched. They have complete immunity from the criminal jurisdiction of the host countryís courts and cannot be prosecuted for any offense unless their immunity is waived by the sending state. Diplomatic agents also have immunity from civil suits except in several very limited circumstances. They enjoy complete immunity from the obligation to provide evidence as witnesses and cannot be required to testify. Family members of diplomatic agents enjoy the same privileges and immunities as do the sponsoring diplomatic agents. The second category comprises those members of the administrative and technical staff of the mission who support the activities of diplomatic agents. This category includes secretaries, certain clerical personnel, office managers and certain security personnel. Their work is deemed critical to the workings of the embassy, but they enjoy privileges and immunities that, in some respects, are less than diplomatic agents. They do enjoy privileges and immunities identical to those of diplomatic agents in respect to personal inviolability, immunity from criminal jurisdiction and immunity from the obligation to provide evidence as witnesses. However, their immunities from civil jurisdiction are quite different. They have immunity from civil jurisdiction only in connection with the performance of their official duties. This is called official acts or functional immunity. Family members of this group have the same privileges and immunities from the host countryís criminal jurisdiction, as do their sponsors. However, because family members have no official duties to perform, they enjoy no immunities from civil jurisdiction. The third category extends to members of the service staff of the diplomatic mission who perform tasks such as driving, cleaning and grounds maintenance. These people are afforded significantly less in the way of privileges and immunities. They have only officialóacts immunity and no personal inviolability, inviolability of property and no immunity from the obligation to provide evidence as witnesses. Their family members enjoy no special privileges or immunities. A separate treaty, the Vienna Convention on Consular Relations in 1963, grants a very limited level of privileges and immunities to consular officials who work in offices that are located outside national capitals. There is a common misunderstanding that consular staffs have diplomatic status and are entitled to diplomatic immunity. Under international law, consular officers have only official acts or functional immunity in respect to both criminal and civil matters, and their personal inviolability is quite limited. The property of consular officers is not inviolable. Consular employees have no personal inviolability, only officialóacts immunity, and enjoy immunity from the obligation to provide evidence as witnesses only in respect to official acts. Most staffs in international organizations in the United States enjoy only officialóacts immunity and have no personal inviolability. In many cases, the senior executives of these staffs have been accorded privileges and immunities equal to those of diplomatic agents. This immunity, for example, is extended to the secretaryógeneral of the UN, and senior officials of the International Monetary Fund, the World Bank and the Organization of American States. Only governmentsónot individualsócan waive diplomatic immunity. The sending nation, in effect, owns these privileges and immunities. The U.S. State Department requests waivers of immunity in every case where the prosecutor advises that, except for the immunity, charges would be pursued. In serious cases, if a waiver is refused, the offender will be expelled from the United States. John Shaw is a contributing writer to The Washington Diplomat.