Diplomatic And Consular Immunity
UNITED STATES DEPARTMENT OF STATEOFFICE OF FOREIGN MISSIONSDiplomatic andConsular Immunity:Guidance for Law Enforcementand Judicial Authorities
This booklet, which provides a guide to the categoriesof foreign mission personnel and the privileges andimmunities to which each is entitled, is a joint publicationof the U.S. Department of State’s:Office of the Legal AdvisorDiplomatic Law and Litigation2201 C St. NW, Room 6422Washington, DC 20520http://www.state.gov/s/l/Office of the Chief of Protocol2201 C St. NW, Room 1238Washington, DC 20520202-647-1985www.state.gov/s/cpr/Office of Foreign Missions2201 C St. NW, Room 2236Washington, DC 20520202-895-3500www.state.gov/ofmBureau of Diplomatic SecurityProtective Liaison Division3507 International Pl. NWWashington, DC ies/c9090.htmFor urgent telephone inquiries outside normal business hours, pleasecall the Diplomatic Security Command Center at 866-217-2089.
UNITED STATES DEPARTMENT OF STATEOFFICE OF FOREIGN MISSIONSDiplomatic andConsular Immunity:Guidance for Law Enforcementand Judicial Authorities
ContentsPreface2I.Introduction4II.Legal and Practical Basis of ImmunityIII.6Categories of Persons Entitledto Privileges and Immunitiesyy Members of Diplomatic Missionsyy Members of Consular Posts (Normal and Special Bilateral)yy International Organization Personnel and NationalMissions to Such Organizationsyy Designated Employees of TECRO/TECOIV.16Identification of Persons Entitled to Privilegesand Immunities in the United Statesyy Identification Cards Issued by the U.S. Department of Stateyy Foreign Diplomatic Passports and U.S. “Diplomatic” Visas:Not Conclusive for Immunityyy Tax Exemption Cards: Not Conclusive for Immunityyy Automobile Registration, License Plates, and Driver’s Licenses:Not Conclusive for Immunityyy Telephone Information and Verification
20V.Terms and Proceduresyy Correct Understanding of Immunityyy Personal Inviolability vs. Public Safetyyy Waiver of Immunityyy Expulsion Procedureyy Official Acts Immunityyy Termination of Immunityyy Archives24VI.Handling Incidentsyy U.S. Department of State Policyyy General ProceduresVII.2829ConclusionAppendicesA. Examples: Identifying DocumentsB. Samples of U.S. Department of State-Issued Diplomaticand United Nations Missions License PlatesC. Law Enforcement Aspects Summary ChartD. Useful Telephone Numbers
Preface1International law, to whichthe United States is firmlycommitted, requires that lawenforcement authorities of theUnited States extend certainprivileges and immunities tomembers of foreign diplomaticmissions and consular posts.Most of these privileges and immunities are not absolute,and law enforcement officers retain their fundamentalresponsibility to protect and police the orderly conduct ofpersons in the United States. This booklet provides a guide tothe categories of foreign mission personnel and the privilegesand immunities to which each is entitled. It explains howto identify (and verify the identity of ) such persons andfurnishes guidance to assist law enforcement officers inthe handling of incidents involving foreign diplomatic andconsular personnel.
I.2Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial AuthoritiesIntroductionWhat Is diplomatic immunity?Diplomatic immunity is a principle ofinternational law by which certain foreigngovernment officials are not subject tothe jurisdiction of local courts and otherauthorities for both their official and, to alarge extent, their personal activities.
The principle of diplomatic immunity is oneof the oldest elements of foreign relations.Ancient Greek and Roman governments,for example, accorded special status toenvoys, and the basic concept has evolvedand endured until the present. As a matter ofinternational law, diplomatic immunity wasprimarily based on custom and internationalpractice until quite recently. In the periodsince World War II, a number of internationalconventions (most noteworthy, the ViennaConvention on Diplomatic Relations and theVienna Convention on Consular Relations)have been concluded. These conventions haveformalized the customary rules and madetheir application more uniform.Notwithstanding the antiquity of the conceptof diplomatic immunity, its purpose isoften misunderstood by the citizens of thisand other countries. Occasional abuses ofdiplomatic immunity, which are brought topublic attention, have also served to prejudicepublic attitudes toward this practice. Dealingwith the concept of immunity poses particularproblems for law enforcement officers who,by virtue of their oath and training, areunaccustomed to granting special privilegesor concessions to individuals who break thelaw. On the other hand, police officers whounderstand the importance of diplomaticimmunity may be inclined to be overlygenerous in its application if they do not havea full understanding of its parameters. It is thepurpose of this booklet to familiarize policeofficers with the general rules of diplomaticand consular immunity and to provide themwith specific guidance regarding the handlingof difficult situations.The term diplomatic immunity is popularly,and erroneously, understood to refer to specialprotections afforded all employees of foreigngovernments who are present in the UnitedStates as official representatives of their homegovernments. Law enforcement officials,however, must have a more sophisticatedunderstanding of the concept. There areover 100,000 representatives of foreigngovernments, including dependents, in theUnited States. Many of these persons may beentitled to some degree of immunity underinternational law. Some of these persons aremembers of diplomatic missions, others areassigned to consular posts, and still othersare employees of international organizationsor members of national missions to suchinternational organizations. For each of thesecategories of persons, particular rules applyand, even within these categories, differentlevels of immunity may be accorded to differentclasses of persons. Most of these persons areassigned to Washington, D.C., and New YorkCity, but large numbers are assigned in othermajor cities around the country. Moreover,nearly all of these persons are free to travelaround the country either on official businessor for pleasure.3
II.4Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial AuthoritiesLegal and PracticalBasis of ImmunityThe special privileges and immunities accordedforeign diplomatic and consular representativesassigned to the United States reflect rulesdeveloped among the nations of the worldregarding the manner in which civilizedinternational relations must be conducted. Theunderlying concept is that foreign representativescan carry out their duties effectively only if theyare accorded a certain degree of insulation fromthe application of standard law enforcementpractices of the host country.
The United States benefits greatly from theconcept as it protects U.S. diplomats assigned tocountries with judicial systems far different thanour own.The various categories of immunity areexplained below and a table is provided onpage 40 to summarize elements of paramountconcern to law enforcement officials, but all havea common legal foundation. While customaryinternational law continues to refine theconcepts of diplomatic and consular immunity,the basic rules are currently embodied ininternational treaties. These treaties have beenformally adopted by the United States and are,therefore, pursuant to the U.S. Constitution, “thesupreme law of the land.” The U.S. governmentis legally bound to ensure that such privilegesand immunities are respected by its states andmunicipalities.U.S. law regarding diplomatic immunity has itsroots in England. In 1708, the British Parliamentformally recognized diplomatic immunity andbanned the arrest of foreign envoys. In 1790,the United States passed similar legislation thatprovided absolute immunity for diplomats andtheir families and servants, as well as for lowerranking diplomatic mission personnel. This1790 law remained in force until 1978, when thepresent Diplomatic Relations Act (22 U.S.C. 254)was enacted to replace it.The principal purpose of the 1978 Act was tobring U.S. law into line with the 1961 ViennaConvention on Diplomatic Relations (whichentered into force for the United States in 1972).The 1978 Act imposed a more precise regimeand reduced the degree of immunity enjoyed bymany persons at diplomatic missions.On a practical level, a failure of the authorities ofthe United States to fully respect the immunitiesof foreign diplomatic and consular personnelmay complicate diplomatic relations betweenthe United States and the other countryconcerned. It may also lead to harsher treatmentof U.S. personnel abroad, since the principle ofreciprocity has, from the most ancient times,been integral to diplomatic and consularrelations.It should be emphasized that even at itshighest level, diplomatic immunity does notexempt diplomatic officers from the obligationof conforming with national and local lawsand regulations. Diplomatic immunity is notintended to serve as a license for persons toflout the law and purposely avoid liability fortheir actions. The purpose of these privilegesand immunities is not to benefit individuals butto ensure the efficient and effective performanceof their official missions on behalf of theirgovernments. This is a crucial point for lawenforcement officers to understand in theirdealings with foreign diplomatic and consularpersonnel. While police officers are obliged,under international customary and treaty law,to recognize the immunity of the envoy, theymust not ignore or condone the commission ofcrimes. As is explained in greater detail below,adherence to police procedures in such casesis often essential in order for the United Statesto formulate appropriate measures throughdiplomatic channels to deal with such offenders.5
III.6Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial AuthoritiesCategories of Persons Entitledto Privileges and ImmunitiesMembers of Diplomatic MissionsDiplomatic missions are traditionally theprincipal communication link between thecountry that sends them and the host country.Accordingly, the staffs of diplomatic missions(embassies) are afforded the highest level ofprivileges and immunities in the host countryin order that they may effectively perform theirimportant duties.
Under modern international law (reflectedin the Vienna Convention on DiplomaticRelations), however, there are differentcategories of persons within each diplomaticmission, some of whom enjoy greaterimmunities than others.The categories of diplomatic mission personnelare defined primarily with reference to thefunctions performed. l “Diplomatic agent”is the term for ambassadors and the otherdiplomatic officers who generally have thefunction of dealing directly with host countryofficials. This category enjoys the highestdegree of immunity. The next category is“members of the administrative and technicalstaff” of the mission, which includes thosepersons who support the activities ofdiplomatic agents. This category includessecretaries, certain clerical personnel, officemanagers, and certain professional securitypersonnel. Note the term “secretary” used hereshould not be confused with the diplomaticrank of “Secretary” (such as a 1st or 2ndSecretary) which is normally a diplomaticagent. Members of the administrative andtechnical staff enjoy privileges and immunitiesthat in some respects are less than diplomaticagents. Finally, there are the “members ofthe service staff” of the diplomatic missionwho perform tasks such as driving, cleaning,and/or grounds maintenance. These personsare afforded significantly less in the way ofprivileges and immunities. The privileges andimmunities of each of these groups is explainedin more detail in following sections, and atable is provided to summarize the privilegesand immunities of greatest interest to lawenforcement personnel.2 Also provided is anexplanation of important exceptions to thegeneral rules. (A discussion of tax and customsduty exemptions and other privileges not ofimmediate concern to law enforcement andjudicial authorities is not included in thisbooklet.)Diplomatic AgentsDiplomatic agents enjoy the highest degreeof privileges and immunities. They enjoycomplete personal inviolability, which meansthat they may not be handcuffed (exceptin extraordinary circumstances), arrested,or detained; and neither their property(including vehicles) nor residences may beentered or searched. Diplomatic agents alsoenjoy complete immunity from the criminaljurisdiction of the host country’s courts andthus cannot be prosecuted no matter howserious the offense unless their immunity is1 The definition of these categories is general since the category into which specific individuals fall may differ depending on reciprocalpractices with the countries concerned. Law enforcement personnel, however, do not need to worry about these distinctions inoperational situations. Their responsibility is to assure that the appropriate degree of immunity is afforded once the person concernedhas been precisely identified.2 The private servants of diplomatic personnel enjoy no jurisdictional immunity or inviolability in the United States.7
Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities8waived by the sending state (see the followingdiscussion). While it is not ordinarily ofconcern to police authorities, they also haveimmunity from civil suits except in four verylimited circumstances: (a) in connection withreal property transactions not conducted onbehalf of the mission; (b) in connection withany role they may play as executor for or heir toan estate being distributed in the host country;(c) in connection with the performance ofprofessional or commercial activities outsidethe scope of their official duties; or (d) inrespect of counterclaims on the same subjectmatter when they have been the initiating partyin a suit. Finally, they enjoy complete immunityfrom the obligation to provide evidence aswitnesses and cannot be required to testifyeven, for example, if they have been the victimof a crime.Family members forming part of the householdof diplomatic agents enjoy precisely the sameprivileges and immunities as do the sponsoringdiplomatic agents.3Members of Administrativeand Technical StaffMembers of the administrative and technicalstaff of a diplomatic mission perform taskscritical to the inner workings of the embassy.Accordingly, they enjoy privileges andimmunities identical to those of diplomaticagents in respect of personal inviolability,immunity from criminal jurisdiction, andimmunity from the obligation to provideevidence as witnesses. Their immunity fromcivil jurisdiction, however, is quite different.Members of the administrative and technicalstaff enjoy immunity from civil jurisdictiononly in connection with the performance oftheir official duties. This is commonly knownas official acts or functional immunity andis explained in more detail in a followingsection that addresses consular privileges andimmunities.Like those of diplomatic agents, the recognizedfamily members of administrative and technicalstaff enjoy the same privileges and immunitiesfrom the host country’s criminal jurisdictionas their sponsors. Since these family membershave no official duties to perform, they enjoy noimmunity from civil jurisdiction.Members of Service StaffMembers of the service staff of diplomaticmissions perform less critical support tasksfor the missions and are accorded much lessin the way of privileges and immunities thanare those in the other categories. Service staffmembers have official acts immunity only(see further explanation below) and enjoy3 The United States defines members of the household to include: spouses, children until the age of 21 (until the age of 23 if they arefull-time students at an institution of higher learning), and such other persons expressly agreed to by the U.S. Department of State inextraordinary circumstances.
III. Categories of Persons Entitled to Privileges and Immunitiesno personal inviolability, no inviolability ofproperty, and no immunity from the obligationto provide evidence as witnesses. The familiesof service staff members enjoy no privileges orimmunities.Nationals or Permanent Residentsof the United StatesThe general rules set forth previously assumethat the staff members of the diplomaticmission are nationals of the sending countryor some third country. The United States, asa matter of policy, does not normally acceptas diplomatic agents its own nationals, legalpermanent residents of the United States,or others who are “permanently residentin” the United States.4 The family membersof diplomatic agents enjoy no privileges orimmunities if they are nationals of the UnitedStates. Members of the administrative andtechnical staff (including their families) andmembers of the service staff enjoy no privilegesand immunities if they are U.S. nationals, legalpermanent residents, or foreign nationals“permanently resident in” the United States.Police officers should not have to deal withthis distinction since the U.S. Departmentof State issues identification cards (see thefollowing discussion) with the nationalityprinciple in mind. However, it is importantfor law enforcement officials to understandthese principles generally, because they couldconfront a situation wherein a U.S. citizenspouse of a foreign national diplomatic agent(who lacks the correct identity documents)attempts to establish his or her immunity solelyon the basis of proving a relationship with thediplomatic agent.Special Bilateral AgreementsThere are some countries with whichthe United States has concluded bilateralagreements that grant to all members of thestaff of their respective embassies (providedthat they are nationals of the sending country)the privileges and immunities to which onlydiplomatic agents are normally entitled.Identification cards will reflect this statusbut police officers should be aware of thisdistinction because they may have to confrontsituations where a chauffeur or mechanicfrom the embassy of one of these countriesasserts a right to full diplomatic privileges andimmunities.Temporary DutyPersons sent to the United States on shortterm official duty with diplomatic missionsordinarily do not enjoy any privileges andimmunities (law enforcement authorities4 A member of a mission, other than a diplomatic agent, “permanently resident in” the United States for purposes of Article 38(2) ofthe VCDR and Article 71(2) of the VCCR enjoys no privileges and immunities pursuant to the Vienna Conventions.9
Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authoritiesshould nonetheless always seek promptverification from the U.S. Department of State inparticular cases involving such individuals).Waivers10Always keep in mind that privileges andimmunities are extended from one countryto another in order to permit their respectiverepresentatives to perform their dutieseffectively; in a sense, it may be said the sendingcountries “own” these privileges and immunities.Therefore, while the individual enjoying suchimmunities may not waive them, the sendingstates can, and do. Police authorities shouldnever address the alleged commission of a crimeby a person enjoying full criminal immunitywith the belief that there is no possibility that aprosecution could result. The U.S. Departmentof State requests waivers of immunity in everycase where the prosecutor advises that, but forthe immunity, charges would be pursued. Inserious cases, if a waiver is refused, the offenderwill be expelled from the United States andthe U.S. Department of State will request thata warrant be issued and appropriate entries tothe National Crime Information Center (NCIC)database be made by the responsible jurisdiction.The seeking of waiver of immunity is handledentirely via diplomatic channels, but effectiveand informed police work becomes the basis ofthe prosecutor’s decision and the foundation forthe U.S. Department of State’s waiver requestsand any subsequent prosecutions or expulsions.Members of Consular Posts(Normal and Special Bilateral)Consular personnel perform a variety offunctions of principal interest to theirrespective sending countries (e.g., issuanceof travel documents, attending to thedifficulties of their own nationals who are inthe host country, and generally promoting thecommerce of the sending country). Countrieshave long recognized the importance ofconsular functions to their overall relations,but consular personnel generally do not havethe principal role of providing communicationbetween the two countries — that function isperformed by diplomatic agents at embassiesin capitals. The 1963 Vienna Convention onConsular Relations grants a very limited levelof privileges and immunities to consularpersonnel assigned to consulates that arelocated outside of capitals.There is a common misunderstanding thatconsular personnel have diplomatic status andare entitled to diplomatic immunity.Consular OfficersConsular officers are those members ofconsular posts who are recognized by boththe sending and the host country as fullyauthorized to perform the broad array offormal consular functions. They have only
III. Categories of Persons Entitled to Privileges and Immunitiesofficial acts or functional immunity in respectof both criminal and civil matters, and theirpersonal inviolability is quite limited. Consularofficers may be arrested or detained pendingtrial only if the offense is a felony and thatthe arrest is made pursuant to a decision by acompetent judicial authority (e.g., a warrantissued by an appropriate court).5 They can beprosecuted for misdemeanors, but remain atliberty pending trial or other disposition ofcharges. Property of consular officers is notinviolable. Consular officers are not obliged toprovide evidence as witnesses in connectionwith matters involving their official duties, toproduce official documents, or to provide expertwitness testimony on the laws of the sendingcountry. Absent a bilateral agreement, the familymembers of consular officers enjoy no personalinviolability and no jurisdictional immunity ofany kind.As indicated, official acts immunity pertainsin numerous different circumstances. No lawenforcement officer, U.S. Department of Stateofficer, diplomatic mission, or consulate isauthorized to determine whether a given setof circumstances constitutes an official act.This is an issue which may only be resolvedby the court with subject matter jurisdictionover the alleged crime. Thus, a person enjoyingofficial acts immunity from criminal jurisdictionmay be charged with a crime and may, in thisconnection, always be required to appear incourt (in person or through counsel). At thispoint, however, such person may assert as anaffirmative defense that the actions complainedof arose in connection with the performanceof official acts. If, upon examination of thecircumstances complained of, the court agrees,then the court is without jurisdiction toproceed and the case must be dismissed. Lawenforcement officers are requested to contact theDepartment of State before arresting a consularofficer, or, if not possible, immediately afterarrest.Consular officers who are full-time practitionersof consular functions are referred to as “career”consular officers. These officers are normallynationals of the sending country who are sent tothe United States to perform these functions fora specific period and then are transferred to afurther assignment. Career consular officers areprohibited by international law from engaging inprofessional or commercial activities outside thescope of their official consular functions.Consular EmployeesConsular employees perform the administrativeand technical support services for the consularpost. They have no personal inviolability, onlyofficial acts immunity, and enjoy immunity fromthe obligation to provide evidence as witnesses5 Police officers should note this distinction carefully. In connection with other categories discussed in this booklet, either a person isabsolutely protected from arrest or, alternatively, he or she has no immunity from arrest whatsoever. In the case of career consularofficers, such arrest may be carried out only if the police officer is operating under the authority of a warrant or similar judicialauthorization. Note, however, the discussion below of the public safety prerogatives of police authorities.11
Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authoritiesonly in respect of official acts. Their familymembers enjoy no personal inviolability orjurisdictional immunities of any kind.Consular Service Staff12Consular service staff do not enjoy personalinviolability or jurisdictional immunity of anykind, but they do have immunity from theobligation to provide evidence as witnesses inrespect of official acts. Their family membersenjoy no personal inviolability or jurisdictionalimmunity of any kind.Nationals or Permanent Residentsof the United StatesConsular employees and consular servicestaff who are U.S. nationals, legal permanentresidents, or who are permanently residentin the United States enjoy no personalinviolability or jurisdictional immunity in theUnited States. (See footnote 4.)Honorary ConsulsHonorary consuls are American citizensor permanent resident aliens who performconsular services on a part-time basis.Honorary consuls, unlike career consuls,are permitted to carry on another business.These persons have “official acts” immunityonly and immunity from the obligation toprovide evidence as witnesses only in respectof official acts. They do not enjoy personalinviolability and may be arrested pending trialif circumstances should otherwise warrant.Family members enjoy no immunity or personalinviolability.Honorary consuls are issued officialidentification cards by the U.S. Departmentof State.Special Bilateral AgreementsIn some cases, a country and the United Stateshave concluded a bilateral consular agreementthat grants to members of the staff of theirconsulates (provided they are not U.S. nationals,legal permanent residents, or permanentlyresident in the United States) privileges andimmunities approximating those affordeddiplomatic agents. Law enforcement officersshould be aware that these arrangements arenot uniform and the U.S. Department of Stateidentification cards issued to these personsreflect the appropriate level of immunity.Temporary DutyPersons sent to the United States on short-termofficial duty with diplomatic missions ordinarilydo not enjoy any privileges and immunities (lawenforcement authorities should nonethelessalways seek prompt verification from theU.S. Department of State in particular casesinvolving such individuals).
III. Categories of Persons Entitled to Privileges and ImmunitiesWaiversAs is the case with diplomatic missionpersonnel, the sending country may alwayswaive the privileges or immunities ofmembers of its consular posts. This is lesslikely to be an issue for consular personnel,however, since their immunities are solimited.International OrganizationPersonnel and NationalMissions to SuchOrganizationsInternational organizations, such as theUnited Nations, are relatively modernentities. The privileges and immunities ofthe personnel of such organizations andthe personnel of national missions to suchorganizations have a different basis than thatof diplomatic and consular representatives.In the case of international organizations,the nations concerned have agreed that theimportant purposes of such organizations maybe accomplished only if a certain measureof privileges and immunities are afforded totheir participants. The nations concernedhave concluded treaties embodying suchgrants of privileges and immunities. Some,including the United States, enacted domesticlegislation granting specific privileges andimmunities to certain categories of personsnot covered by the treaties. In determiningthe degree of inviolability or immunity, lawenforcement officers will be guided primarilyby the identity documents that have beenissued to such persons. The following,however, provides a general overview of thedistribution of privileges and immunities inconnection with international organizations.Personnel of InternationalOrganizationsInternational organizations that haveheadquarters or other offices in the UnitedStates are staffed with administrative andexecutive employees, as necessary, to carryout their functions. The vast majority of theseemployees enjoy only official acts immunity asprovided for in U.S. domestic legislation (theInternational Organizations Immunities Act,22 U.S.C. 2881) and no personal inviolability.In certain cases, however, the most seniorexecutives of such organizations have beenaccorded privileges and immunities equalto those afforded diplomatic agents. Thisis the case for the Secretary General of theUnited Nations and for all Under SecretariesGeneral and Assistant Secretaries-Generalof the United Nations, Principal ResidentRepresentatives of the International MonetaryFund and the World Bank, as well as somesenior officials of the Organization ofAmerican States secretariat.13
Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial AuthoritiesPersonnel of National Missions toInternational Organizations14The United Nations and the Organization ofAmerican States are headquartered in theUnited States, and most of their memberstates maintain permanent missions to theheadquarters in the United States. Thepermanent representatives staffing thesemissions are accredited to the internationalorganization concerned (not to the UnitedStates), but their privileges and immunitiesare nonetheless often defined by refe
international law, diplomatic immunity was primarily based on custom and international practice until quite recently. In the period since World War II, a number of international conventions (most noteworthy, the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consul
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the resume of the diplomacy practitioner. The objective of this DAOC module is to provide participants with state-of-the-art and state of the practice training in consular affairs in the modern diplomatic mission, taking a fresh l
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