Diplomatic Shield: The Historical Origin and Dynamics of Diplomatic Immunity in Public International Law

Diplomatic immunity, often misconstrued as an impenetrable shield against accountability, is a vital norm of international law. Its primary purpose is to protect diplomats and their missions, rather than offer blanket impunity. Tracing its origins to antiquity, the Vienna Convention on Diplomatic Relations of 1961 solidified its status in modern diplomacy.

By: Felipe López-Valencia

Diplomatic immunity, often misunderstood in the collective imagination as an absolute shield against all accountability, is actually a customary norm of public international law aimed at safeguarding the integrity of diplomats and their missions abroad. There are misconceptions that suggest this immunity would allow diplomats to evade criminal responsibility, as will be explained later. Its true purpose lies in preserving diplomatic dignity and facilitating the development of effective international relations.

The roots of diplomatic immunity trace back to ancient times, where Greek city-states and the Roman Empire itself recognized the importance of protecting envoys on diplomatic missions. Despite the lack of detailed records, evidence suggests that messengers enjoyed protection. In the 17th century, with the development of modern diplomatic practice, the concept of immunity was solidified. The Vienna Convention on Diplomatic Relations of 1961, rather than creating, codified this norm in international law.

Some of the key points of the Vienna Convention on Diplomatic Relations in relation to diplomatic immunity are as follows:

Personal:

• Personal Inviolability: The person of a diplomatic agent is inviolable and cannot be arrested or detained. The receiving State must treat the diplomatic agent with due respect and take appropriate measures to prevent any attack on their person, freedom, or dignity. (Article 29)

• Inviolability of the Private Residence: The private residence of a diplomatic agent enjoys the same inviolability as the premises of the mission. Their papers, correspondence, and property also enjoy inviolability. (Article 30)

• Immunity from Jurisdiction: A diplomatic agent enjoys immunity from the criminal jurisdiction of the receiving State. They also have immunity from its civil and administrative jurisdiction, except in certain specified cases, such as actions related to private immovable property in the receiving State, succession matters, or professional or commercial activities outside their official functions. (Article 31)

• Waiver of Immunity: The immunity from jurisdiction of diplomatic agents and those enjoying immunity under Article 37 can be waived by the sending State. The waiver must be express and does not apply to counter-claims directly connected to the principal claim. (Article 32)

• Immunity for Family Members and Certain Staff: The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36. (Article 37)

Objects and Spaces:

• Inviolability of Missions: The premises of a diplomatic mission shall be inviolable. Agents of the receiving State may not enter them, except with the consent of the head of the mission. The receiving State must protect the mission’s premises against intrusion, damage, and disturbances, and they are immune from search, requisition, attachment, or execution. (Article 22)

• Communication of the Mission: The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and other missions, the mission may employ all appropriate means, including diplomatic couriers and coded messages. The diplomatic bag shall not be opened or detained. (Article 27)

• Commencement and Termination of Privileges and Immunities: Privileges and immunities begin when a person entitled to them enters the territory of the receiving State for their post or upon notification of their appointment. They end when the person leaves the country or after a reasonable period. This does not affect immunities for acts performed in the exercise of official functions. (Article 39)

• Transit of Diplomatic Agents: When a diplomatic agent passes through or is in the territory of a third State, that State must accord them inviolability and other immunities required for their transit or return. This also applies to administrative and technical staff of the mission and members of their families in transit. (Article 40)

As previously indicated, immunity is not only conferred to the individual but also to the spaces and objects that serve a diplomatic function. These articles collectively establish the framework for diplomatic immunity, protecting diplomats, their families, and the integrity of diplomatic missions and materials. 

Through the U.S. Diplomatic Relations Act of 1978, the U.S. government may grant foreign diplomats various levels of immunity based on their rank and duties. The highest-ranking officials, as stipulated by the Vienna Convention, enjoy immunity from administrative, civil, and criminal liability. However, criminal liability may be waived in cases of particularly severe offenses. As history and government expert  Longley (2022) explains in ThoughtCo in cases involving wrongdoing diplomats residing in the U.S. the Department of State employs a set of procedures: “(…) notifies the individual’s government of the details surrounding the criminal charges or civil suit.” and “(…) may ask the individual’s government to voluntarily waive their diplomatic immunity, thus allowing the case to be handled in a U.S. court.”

To “waive” means to voluntarily relinquish or give up a right, claim, privilege, or requirement. It involves the intentional decision not to exercise or enforce something that one is entitled to or could demand. If the sending country agrees to waive diplomatic immunity, the diplomat can then be subject to the jurisdiction and process of the host country. They can be arrested, prosecuted, and tried like any other individual under the host country’s laws. Usually, the majority of governments will consent to the removal of diplomatic immunity solely in cases of severe non-work-related criminal offenses or when their envoy is summoned to provide testimony in a major criminal case. Diplomatic agents themselves do not possess the authority to renounce their immunity.

An illustration of the earlier hypothesis can be found in the Soto-Mendoza case, a Colombian diplomat who served as Secretary to the Military Attaché at the Embassy of Colombia in London. He was involved in a fatal altercation with a young British citizen named Damian Browna, stemming from a robbery targeting the diplomat’s son. Bogotá waived the immunity as the UK government requested it. Colombian Ambassador Ricardo (2002), at the time of the events, stated: “The Colombian government trusts that the British authorities will ensure that the due process of law is carried out in order for the investigation to be conducted with full transparency and justice.” In consequence Soto-Mendoza was charged with murder.

Eventually, he was declared innocent of the charge. The Prosecutor couldn’t prove that the diplomat was armed, and the jury leaned toward the theory of an accident, dismissing the idea of a premeditated attack. Regardless of the verdict, this demonstrates that in practice, diplomatic immunity does not entail an exemption from criminal responsibility. The key is to allow host state authorities to prosecute diplomats in deserving situations. However, it ultimately depends on the political and diplomatic will of the sending government.

Bibliography

Brown, J. (1988). Diplomatic Immunity: State Practice Under the Vienna Convention on Diplomatic Relations. International & Comparative Law Quarterly, 37(1), 53-88. doi:10.1093/iclqaj/37.1.53

CNN. (2002). Diplomat charged with UK murder. CNN. http://edition.cnn.com/2002/WORLD/europe/09/27/uk.colombia/index.html

Frey, L. and Frey, M. L. (2023, August 4). Diplomatic immunity. Encyclopedia Britannica. https://www.britannica.com/topic/diplomatic-immunity

Longley, R. (2022). Diplomatic Immunity Definition. ThoughtCo. https://www.thoughtco.com/diplomatic-immunity-definition-4153374

U.S. Diplomatic Relations Act of 1978, Pub. L. No. 95-393, 92 Stat. 808 (1978).

Vienna Convention on Diplomatic Relations (1961), Article 22.

Vienna Convention on Diplomatic Relations (1961), Article 27.

Vienna Convention on Diplomatic Relations (1961), Article 29.

Vienna Convention on Diplomatic Relations (1961), Article 30.

Vienna Convention on Diplomatic Relations (1961), Article 31.

Vienna Convention on Diplomatic Relations (1961), Article 32.

Vienna Convention on Diplomatic Relations (1961), Article 37.

Vienna Convention on Diplomatic Relations (1961), Article 39.

Vienna Convention on Diplomatic Relations (1961), Article 40.

Vienna Convention on Diplomatic Relations (1961), Article 41.