Diplomatic Immunity


INTRODUCTION

United Kingdom, 1982

While unloading the ship which carried the embassy's materials, one box marked
"household effects" dropped from a forklift. More than six hundred pounds of
marijuana worth 500,000 British pounds (1982 prices) spilled dockside.

For centuries governments have used ambassadors, and diplomats to represent
their nation. These special envoys have done everything from resolving years of
conflict, deciding on how much humanitarian relief will be sent to a nation, or
just being present at diplomatic dinners and ceremonies. These people have been
the vital link between nations, and they have enjoyed complete immunity from the
law of the host nation. Originally this immunity was extended as a courtesy to
allow for an uneventful stay in the host country. While in a foreign country on
official business, the diplomat would be granted exemption from arrest or
detention by local authorities; their actions not subject to civil or criminal
law. For the longest time this privilege produced little or no incidents.
However, this unique position of freedom that diplomats, their family, and staff
have been graced with has not been so ideal. Recently the occurrences of abuse
for personal or national gain has grown out of proportion. What once protected
the diplomat and his staff from parking tickets and some differing social laws,
now grants them protection under the law to commit crimes such as drug
trafficking, kidnapping, rape, and murder. Even though serious crimes are rare
and punishable to various extents in most countries, domestic authorities were
forced to look the other way. While it would be convenient to believe that the
six hundred pounds of marijuana was sent for personal consumption at the embassy,
it is evident a small drug trafficking ring was being protected under the guise
of diplomatic immunity.

HISTORY/DESCRIPTION

The international community has tried to develop a universally accepted set of
norms governing the conduct and privileges of diplomats abroad. These few
Articles from the convention show the good faith of the convention:

Article 29: Diplomats are inviolable; exempt from any arrest/detention.

Article 31: Diplomats are exempt from criminal jurisdiction, they can be tried
only if immunity is waived.

Article 32: Only the sending country can waive immunity

Article 41: Diplomats should still respect the laws and regulations of the host
state.

Baring few changes, the 1961 Vienna Convention on Diplomatic Relations remains
the basis for interaction between states. This convention tackles the problem by
dividing the privileges of immunity into four classes. The diplomat and his
family enjoy "complete" immunity. They cannot be arrested, detained or taxed.
They do not fall into the realm of jurisdiction of the host country. Further
they cannot be asked to stand trial or submit to having their possessions
searched. The diplomatic staff are granted these same rights while performing
official diplomatic business. Private servants have only been granted immunity
from taxation. The privilege of complete immunity allows for the use of the
"diplomatic pouch". This not an actual pouch, rather it is the power to declare
any belongings off limits. The crate being removed from the ship (above story)
was considered diplomatic pouch.

The introduction of the term "diplomatic pouch"; brings us to one of the major
problems with the standards regarding conduct of diplomats. Originally the
concept of diplomatic pouch was used to permit secrecy on official visits by
foreign staff. This policy of ultimate secrecy becomes important when diplomats
are venturing into unfriendly territory. Further, an explicit trust is granted
to the diplomats to allow for free communication between the diplomat and their
sending country. However this gracious offer of trust allows for easy abuse. A
British foreign affairs committee declared, "The only way, in fact, to find out
if diplomatic bags contain prohibited items would be to drop them while
unloading them from the aircraft and hope that they would split open" ("First
Report of the Foreign Affairs Committee of the House of Commons," p. 617).

Smuggling of drugs, weapons, and priceless artwork are all to common. In these
cases, abuse of the diplomatic pouch is obvious, yet in some instances the
sending country is also involved. Once a diplomat is accused of a crime in the
host country the only means possible to bring the diplomat to justice is to have
the sending country waive the diplomat's immunity. In most cases the sending
country wishes to protect its reputation and ultimately the reputation of the
diplomat, therefore refusing to give up immunity.

The question of rescinding immunity brings up the second major aspect of this
topic. When a crime is committed what options do the two countries have to solve
the problem? The first option is to have the sending country waive the
diplomat's immunity, allowing the diplomat to be punished for the crimes
committed in accordance with the laws of the host nation. While