Diplomatic Immunity

Joe Bartkiw

For thousands of years, it has been customary to allow other nation’s diplomats to

travel freely within a foreign country without fear of any harm. The ancient Romans and

Greeks first employed this technique in order to facilitate open communication with

hostile states. They believed a guaranteed safe passage would allow for disputes to be

solved verbally rather than with bloodshed. As time passed, this became a custom

amongst neighboring countries (Hanrahan, 2005). It was not until the Vienna Convention

of 1961 that this practice was codified. Articles twenty to forty-one of the Vienna

Convention on Diplomatic Relations provide certain rights, privileges and immunities to

diplomats to ensure they can complete the task they have been given (Howe, 2014).

Article 29 states, “The person of diplomatic agent shall be inviolable. He shall not be

liable to any form of arrest or detention.” (Vienna Convention, 1961, a 29). As a result,

diplomats can claim diplomatic immunity when caught committing a crime or violating

laws. This ensures they will not be convicted or even detained by law enforcement

officials. There are exceptions to these articles. If a crime committed is severe enough,

the country the diplomatic is from can revoke his immunity. This allows the host country

to persecute him or her in their own legal system (Leys, 2016). Historically, these articles

have led diplomats to believe they have a “get out of jail free card”, which subsequently

leads to an abuse of this immunity. Diplomats continue to be protected under the Vienna

Convention of 1961 with diplomatic immunity, providing them with a false sense of

being above the law. Diplomatic immunity should be removed from the Vienna
Convention because it jeopardizes the safety of host country citizens, it violates human

rights worldwide, and contributes to local economic hardship.

When diplomats are welcomed into their host country as esteemed guests, they are

expected to be respectful to the people living around them. More often than not, this is

not the case. There are numerous cases of diplomats committing serious and harmful

crimes that affect the citizens of their host countries, sometimes resulting in death. In

2004 the UK released figures stating that between 1999-2002 diplomats committed 122

serious crimes, however they could not prosecute them due to their diplomatic immunity

(D’Silva, 2015). The ability to persecute offenders does not only give closure to the

victim, but it deters criminals from reoffending. Gueorgui Makharadze, a Georgian

diplomat residing in Washington, DC, was driving 74mph in a 25mph zone when he

plowed into three cars. The result was the death of a 16-year-old girl. This was not an

isolated incident for Mr. Makharadze. The Georgian diplomat had been pulled over for

speeding 18 months earlier, and for driving the wrong way on a city street four months

before that. During the second incident, the police officer smelt alcohol and insisted that

Mr. Makharadze not continue to drive. As a response to this, Makharadze stated he was

protected by his immunity (Janofsky, 1997). The inability for officers and other law

enforcement personnel to act on these offenders results in them reoffending. Diplomats

see no consequence to their actions, as they believe their immunity protects them from

everything they do. Any civilian caught driving while intoxicated in the state of DC

would have had their license revoked for a minimum of six months (Washington DMV,

n.d.). This would render them unable to drive. Due to Mr. Makhararadze’s immunity, the
police officers could not arrest him or suspend his license. This left a very dangerous man

on the streets and resulted in the death of a teenage girl.

Physical harm to society can be unintentional like in the case of Mr. Makharadze,

or it can be done with malicious intent. The problem with diplomatic immunity is that it

cannot discern the difference between the two; it protects diplomats in all cases unless the

home country is willing to waive the immunity. The case of Yvonne Fletcher clearly

outlines the absurd and harmful nature of diplomatic immunity. Fletcher was killed

during a protest of Mummar Gaddafi’s regime outside of the Libyan Embassy in the UK

in1984. Automatic gunfire was unleashed from the first floor of the embassy into the

crowd of protestors, injuring 11 people and killing Fletcher. Although it was unclear who

the shooter was, the act was clearly intentional. Regardless, the entirety of the Libyan

diplomatic team was escorted to Heathrow airport where they were allowed to fly home

due to their immunity. No matter how badly the UK Government wanted justice for a

terror attack on home soil, they could only stand by and watch Fletcher’s murderer go

free. These Libyan diplomats knew the corrupt regime that controlled Libya, and knew

their government would not waive their immunity. They were allowed to take shots,

without having to answer to them. Intentional or not, diplomatic immunity has led to

civilian harm on numerous occasions. This stems from diplomats knowing there will be

little to no repercussions for their actions and eradication of this protection will help limit

dangerous activities (Weaver, 2015).

Diplomats not only harm citizens physically, but also are disrupting local economies and

funding throughout the world by abusing their immunity. Their immunity protects them

from any civil law suit. Creditors do not have any legal way of ensuring a diplomat

honors the loan. Diplomats will often claim their diplomatic immunity to avoid settling

debts owed to local businesses and governments. Municipal governments often get hit the

hardest when diplomats refuse to pay their parking and traffic tickets. In 2015 alone,

diplomats in London, England failed to pay 4,858 parking fines resulting in € 477,499

($710,803.91 CAD) of outstanding fees. Perhaps the most staggering figures lie within

New York City. To current date, UN diplomats owe more than $16,000,000 USD local

authorities (Benedictus, 2016). This failure to pay is disrespectful and destructive. The

money that is owed would be used to fund municipal operations such as repaving and

salaries to police officers. If diplomats are using municipally owned roads, they should be

expected to help provide upkeep. Especially if this upkeep is payment for them driving

and parking dangerously. Without this money, cities could be forced to reduce the quality

and frequency of these services. This is another instance of how abusing diplomatic

immunity can have severe aftershocks on the host country and its people and how

removing it would prove to be very beneficial. As civil lawsuits are not a worry to

diplomats, they simply do not pay back loans owed to local businesses. They are cheating

hard working locals of money they have earned. In Ottawa, an undisclosed diplomat

currently owes $21,000 CAD to a local property management company for their services

(City News, 2017). This is not the first time something like this has happened regarding

diplomats. In 1995, diplomats in New York City owed $7,000,000 to local creditors such

as landlords, hotels, and service stations (Meisler, 1995). Most of the services these
diplomats have employed are small businesses, struggling to get by. However as

diplomats, they feel entitled to everything on foreign soil, and effectively are due to the

Vienna Convention of 1961. Diplomats are hiding behind this convention, and making it

hard for people to make ends met. The result is financial stress for the host country. This

practice is terrible, wreaking havoc on the wallets of unsuspecting citizens and will

continue to do so until the convention is amended.

Diplomatic immunity has not only harmed civilians physically and financially; it

has also been violating their human rights. In 1215 AD, King John of England set forth

the Rule of Law in Magna Carta. Hundreds of years later, the Vienna convention of 1961

was ratified and set forth articles that violated the Rule of Law, which is present in

Charters and Constitutions worldwide. The Rule of Law is a legal principle that states

nobody is above the law. Even presidents and high-ranking officials are subject to the

laws that the state has set out for the general population. (Bradley & Gulati, 2010).

Section 15 (1) of the Canadian Charter of Rights and Freedoms states that “Every

individual is equal before and under the law and has the right to the equal protection and

equal benefit of the law without discrimination.”(Canadian Charter, 1982, s 15(1)). In

1985, the supreme court of Canada ruled that the Charter applies to non-citizens. As a

result of this, diplomats are currently enjoying the four Fundamental Freedoms outlined

in the Charter as well as many other rights. Their diplomatic immunity allows them to

bypass Section 15 of the charter, as they are effectively above the law. This does not

solely pertain to Canada. Countries such as Switzerland, the Netherlands, Italy, and many

more have articles within their constitutions stating everyone is equal under the law

(Younkins, n.d.). Allowing diplomats to claim their diplomatic immunity when they are
subject to punishment or reparations is not constitutional and should result in careful

examination of the purpose and implementation of diplomatic immunity.

The Rule of Law is not the only human rights violation that stems from the

Vienna Convention of 1961. In fact it is one of many. A legal norm can in some cases

establish a legal duty, and in turn a human right. Many legal systems have established it

as their legal obligation to prevent violations, provide retribution to injured parties, and

punish offenders. People who have been harmed have the right to see the offender given a

fair trial and sentence. Prevention primarily deals with the removal of obstacles that breed

injustice. Due to immunity shielding diplomats from domestic persecution, it interferes

with the intended operation. Retribution is the second aspect of the legal obligation. The

presence of these immunities again interferes with this element. Retribution is

punishment inflicted on the offender in order to satisfy members of society and family.

One way of solving this violation is changing diplomatic law so that violations carry a

significant punishment, and will in turn satisfy the people. Lastly, punishment is an

important element of the legal order. The wrongdoer cannot be forced to pay

compensation to the victim for unlawful actions or be deterred by serving a prison

sentence. The violations of legal obligations and constitutions worldwide do not allow

countries to provide the best living conditions for citizens. Instead, diplomatic immunity

is infringing upon their human rights and provides a strong case for reform (Munguthan,

n.d.).
 When the Greeks and Romans first provided diplomatic envoys immunity in order

to pass through their land without persecution. It was done to ensure countries maintained

open lines of communication and promoted diplomacy. Since the signing of the Vienna

Convention on Diplomatic Relations in 1961, diplomats have done more harm than good

while on diplomatic missions. Being given diplomatic immunity no longer protects

diplomats from the citizens of foreign country; in fact it gives diplomats a feeling of

superiority and invincibility. They believe they are not responsible for any of their

actions. Diplomatic immunity has led to the physical harm and death of citizens, financial

crisis within host countries, and countless violations of human rights worldwide. The

world is constantly evolving, and laws should be along with it. It has been 56 years since

the laws on diplomatic immunity were set out, and changes are long overdue. These laws

must ensure the security of the diplomat, but in no way should a citizen’s life be changed

due to the careless acts of careless diplomats.

 Reference List

Benedictus, L. (2016, September 23). A fine mess: how diplomats get away without
paying parking tickets. Retrieved April 30, 2017, from
https://www.theguardian.com/cities/2016/sep/23/fine-diplomats-not-paying-
parking-tickets

Bradley, C., & Gulati, M. (2010). Withdrawing from International Custom. The Yale Law
Journal,120(202). Retrieved April 30, 2017, from
http://documents.law.yale.edu/sites/default/files/Bradley%20Gulati.pdf

Canadian Charter of Rights and Freedoms, 1982.

City News. (2017, March 27). The crimes committed by those with diplomatic immunity
in Canada. Retrieved April 30, 2017, from
http://www.citynews.ca/video/2017/03/27/video-the-crimes-committed-by-those-
with-diplomatic-immunity-in-canada/

D'Silva, E. M. (2015, October 20). No Foreign Diplomats Should Get Away With Rape.
Retrieved April 30, 2017, from http://www.huffingtonpost.com/aspen-new-
voices- fellowship/lets-not-allow-foreign-di_b_8332570.html

Hanrahan, N. (2005). A History of Diplomatic Immunity and the Development of

International Organisation Immunity. Retrieved April 30, 2017, from
http://www.caio-ch.org/reforms/Intern_Paper_I.pdf

Howe, A. (2014, July 18). Diplomatic immunity: How does it work? Retrieved April 30,
2017, from https://www.legalzoom.com/articles/diplomatic-immunity-how-does-
it-work

Janofsky, M. (1997, October 08). Georgian Diplomat Pleads Guilty in Death of Teen-Age
Girl. Retrieved April 30, 2017, from
http://www.nytimes.com/1997/10/09/us/georgian-diplomat-pleads-guilty-in-
death- of-teen-age-girl.html

Leys, D. (2016). Diplomatic Protection and Individual Rights: A Complementary

Approach. Harvard Law Journal,57, 1-3. Retrieved April 30, 2017, from
http://www.harvardilj.org/wp-content/uploads/January-2016_Vol-57_Leys1.pdf

Meisler, S. (1995, March 25). UNITED NATIONS : With Rent Overdue, Bills Unpaid,
Deadbeat Diplomats Get Scolding. Retrieved April 30, 2017, from
http://articles.latimes.com/1995-03-25/news/mn-46921_1_united-nations

Mugunthan, S. (n.d.). Diplomatic Immunity In The Context Of International Human

Rights. Retrieved April 30, 2017, from
http://www.legalserviceindia.com/articles/dhuman.htm
Vienna Convention On Diplomatic Relations, 1961.

Washington DC DUI & DWI Laws & Enforcement. (n.d.). Retrieved April 30, 2017,
from http://www.dmv.org/washington-dc/automotive-law/dui.php

Weaver, M. (2015, November 19). How Yvonne Fletcher's killer was allowed to 'go free'
for 30 years. Retrieved April 30, 2017, from https://www.theguardian.com/uk-
news/2015/nov/19/yvonne-fletcher-killer-free-30-years-libya

Younkins, E. W. (n.d.). Retrieved April 30, 2017, from

http://www.quebecoislibre.org/000902-11.htm