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Explainer: How does diplomatic immunity work?

The concept is being discussed after UK police said that an American diplomat’s wife is a suspect in a fatal road crash.

Diplomats and their families can in theory receive a range of immunities.
Diplomats and their families can in theory receive a range of immunities.
Image: Shutterstock/Belish

DIPLOMATIC IMMUNITY IS a well-known, widely discussed but often misunderstood  legal concept. 

It’s back in the news after UK police chiefs asked the US embassy in London to waive immunity for an American diplomat’s wife, who is a suspect in a fatal road crash

The idea of diplomats being protected from the law is a centuries-old concept. The idea was traditionally linked to ideas of sovereignty – a representative of a king or a queen basically enjoyed the same privileges afforded to the monarch and should be ‘above the law’ in another country. 

In the modern world, this justification doesn’t really hold up. Instead theorists and academics have argued that immunity is necessary to ensure that undue pressure isn’t applied to diplomats doing sensitive work in another country. 

Who gets immunity?

It seems quite a simple question. Staff working in a diplomatic capacity, provided they’re not nationals of the state they’re working in, can get this immunity.

Staff from the UN, the Council of Europe and other international organisations can also benefit from this immunity. 

The Vienna Convention on Diplomatic Relations, which governs issues like immunity and consular protections, states in Article 31:

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction.

There are conditions attached. For instance, the convention states that this doesn’t include behaviour “relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions”. 

“Diplomacy” can also cover a vast array of jobs, not just that of senior staff like ambassadors, while the idea of what behaviour is or isn’t covered can also be stretched and extended. 

Ambassadors and other highly-ranked staff can benefit from the broadest range of immunity. In contrast, more junior staff will only receive a narrower scope of immunity.

The widest scope can cover criminal actions, while more minimal protection can be afforded against civil crimes carried out as part of “official” work. 

In Ireland, which is a signatory of the Vienna Convention, rules on diplomatic immunity are covered by the Diplomatic Relations and Immunities Act 1969, which was updated in 2017.

States have limited power themselves to intrude upon diplomatic immunity – considering that countries themselves highly prize immunity for their own staff, the consequences for them of ignoring or undermining it are obvious. 

Instead, it is up to states whether they agree to waive immunity for their staff in another country. This doesn’t mean staff can behave as they like – diplomats are charged with respecting the laws of their host countries in the hope that this is reciprocated elsewhere. 

But for a doctrine that seems remarkably clear – diplomats can be immune from the criminal law and regulations of the state in which they’re based – the application is famously murky.

Families

Under Vienna Convention on Diplomatic Relations, families of diplomats can be granted immunity from arrest or detention. 

Restrictions on this can be applied. In the UK for instance, the immunity doesn’t apply to the family of consular officials outside London. 

However, like many things in international law, nothing is totally clear cut. 

The justification is simple – if diplomats should be immune from state power to pressure them, then spouses need that same protection. 

In recent decades, this immunity has been stretched to include wider family members. Could – and should – a diplomat’s son or daughter receive that immunity too? The lack of court decisions and litigation around the law typically makes it hard to come to firm conclusions. 

Some lawyers have also argued that the Vienna Convention should be construed narrowly to cover simply the behaviour of staff while performing official duties – but states have typically taken a more expansive view of international law. 

In the UK, the Crown Prosecution states:

Criminal immunity and inviolability in the UK is conferred on all qualifying dependent household members of Diplomatic Agents and Administrative and Technical Staff of foreign diplomatic missions and Consular Officers and Consular Employees at London based foreign consular missions.

Legal debate continues over how to define a “household”, which is something of an old-fashioned term. But away from the dry legal arguments, political and pragmatic considerations often take priority.

When it comes to families, states will often have little interest in setting a precedent for waiving diplomatic immunity for senior diplomatic spouses. 

So while the UK has requested a waiver of immunity in this recent case, the chances of it being accepted depend on a range of factors – from the rank of the diplomat to the relationship between the UK and the US. 

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