With the 1961 Vienna Convention on Diplomatic Relations leaving diplomatic immunity unchanged, countries must seek alternate routes to prevent abuses and seek justice from the diplomats they host.
Cuban diplomats expelled from the United States leave the Cuban Embassy in Washington, D.C. in 2022.[1]
As misconceptions about permissible activity for diplomats working for their own government abroad grow, subtle questions have emerged about the implications of a long-standing principle of international law: diplomatic immunity.[2] Whether in response to accusations of UN employees engaging in violence, a teenager claiming diplomatic immunity as a defense to running over a police officer, or silence resulting from inviolability of diplomatic facilities, increasing consciousness of problems surrounding diplomatic immunity has brought calls for abolition.[3]
With the intent to protect diplomats in hostile host nations, the 1961 Vienna Convention on Diplomatic Relations granted immunity to diplomats, but not consular officers, from civil and criminal suits while they are stationed abroad for official work.[4] Diplomats remain under the jurisdiction of their home nation, but the home nation can waive diplomatic immunity either unilaterally (deciding to do so on its own accord) or upon request from the host nation.[5] However, requests to waive diplomatic immunity are seldom granted by home nations.[6] This system has led to abuse, spanning from diplomats and family members refusing to pay parking tickets in New York City, to a British teenager’s death by a diplomat’s wife’s reckless driving going unpunished.[7]
In recent instances, diplomats have claimed immunity to trafficking weapons, narcotics, and even human beings.[8]However, concerns about the potential for abuses of diplomatic immunity are not new.[9] Host countries have long worried about abuse of their criminal legal structures, and even the United Nations has been exposed to scandal when its employees violate policies and procedures.[10] However, in conjunction with calls to rework the long-standing diplomatic immunity structure, countries have found workarounds, such as expelling diplomats from their soil for serious offenses.[11] Even with these DIY-remedies, the broad framework of diplomatic immunity remains unchanged, and fears of abuse remain unchanged as well.[12]
Heartfelt tragedies and denials of justice have occurred due to diplomatic immunity claims. In 2019, the wife of an American CIA employee stationed in the United Kingdom caused an accident by driving on the wrong side of the road, resulting in the death of a nineteen-year-old.[13] She fled the United Kingdom after the state department invoked diplomatic immunity on her behalf, and subsequent requests by the British government for her extradition were denied.[14] She was eventually given a suspended jail sentence after appearing via video conference call in a British court but did not return to the United Kingdom at the advice of the U.S. government.[15] The sentence remains unenforceable unless the U.S. approves the U.K. extradition request. Diplomatic immunity’s use as a short-term defense in this instance lead to lengthy legal proceedings that otherwise would not have occurred if she did not have diplomatic immunity, and some claim it denied justice to the victim’s family.[16]
However, there are slight glimmers of hope. Diplomats have been denied immunity for some offenses, albeit usually on procedural grounds. For example, in 2019, a Madagascan driver for the former permanent representative of Benin to the UN (“the ambassador”) was fired and filed suit against the ambassador’s estate alleging minimum wage violations, New York State Labor Law violations, overtime compensation, and a multitude of common law tort claims.[17] The driver alleged he had been “lured” from Madagascar by the ambassador and his wife (the driver’s aunt) with a work opportunity. However, he had been subjected to verbal abuse, threats of physical violence, and long working hours with no time to sleep or seek medical care.[18] Additionally, the driver’s passport had been confiscated – enabling the ambassador to stall his visa and immigration status with the U.S. State Department.[19] The ambassador was likely trying to classify his driver as an employee of the mission, rather than the ambassador himself, due to the mission being immune from suit.[20]
Although the ambassador died in 2020, the suit continued against his estate. The U.S. District Court for the Southern District of New York declined to dismiss based on diplomatic immunity claims.[21] In doing so, the court considered the initial entry of the driver on a personal employment visa, considering him an employee of the ambassador rather than the mission itself, and the driver’s contract classified him as an employee of the ambassador.[22] Further, the court considered the fact that the driver lived at the ambassador’s residence as well as the uncontested allegations the driver “was . . . responsible for driving [the ambassador's wife], their children, and their family friends anywhere and at any time.”[23] The court then denied diplomatic immunity claims, noting that because the employment at issue was not solely for the purpose of supporting the ambassador’s exercise of diplomatic functions, it was not an official act, and, therefore, diplomatic immunity under the Vienna Convention would not apply.[24] While currently under appeal, this is a sign that courts are more willing to apply diplomatic immunity for its intended purpose, rather than as a catch-all defense to egregious behavior.
The abuses of diplomatic immunity over the years continue to cause problems for countries attempting to seek justice, as well as for organizations who have severely reduced their self-policing. As the world is more interconnected than it was in 1961, revisions to this long-standing doctrine are necessary to ensure the most basic principle citizens can reasonably expect: no one is above the law.
[1] Olivier Douliery, photograph of Cuban diplomats leaving the Cuban Embassy in Washington, D.C., in Robert Longley, How Far Does Diplomatic Immunity Go?, ThoughtCo. (Sept. 1, 2024), https://www.thoughtco.com/diplomatic-immunity-definition-4153374.
[2] See Michael Rubin, The UN Won’t Reform Until Its Employees Lose Diplomatic Immunity, Wash. Exam’r (Mar. 4, 2024, 10:22 AM), https://www.washingtonexaminer.com/opinion/2900820/un-wont-reform-until-employees-lose-diplomatic-immunity/.
[3] See Id. (discussing United Nations Relief and Works Agency employees’ complicity with Hamas, including alleged weaponry in their homes and participation in kidnappings in Israel); No Immunity for Israeli Diplomat’s Son Accused of Running Over a Sunny Isles Beach Cop, NBC6 South Florida (Feb. 1, 2024, at 9:33 PM), https://www.nbcmiami.com/news/local/no-immunity-for-israeli-diplomats-son-accused-of-running-over-a-sunny-isles-beach-cop/3223005/ (detailing a Florida court and the U.S. state department’s denial of diplomatic immunity to the son of an Israeli consular officer); see also Kareem Chehayeb & Albert Aji, Israeli Strike on Iran’s Consulate in Syria Killed 2 Generals and 5 Other Officers, Iran Says, AP News (Apr. 3, 2024, 1:57 AM), https://apnews.com/article/israel-syria-airstrike-iranian-embassy-edca34c52d38c8bc57281e4ebf33b240 (noting that an airstrike on an Iranian mission in Syria raises a question as to whether Iran forfeited diplomatic immunity for those working in the mission by first engaging in a strike outside of Vienna convention regulations).
[4] Vienna Convention on Diplomatic Relations, United Nations, art. 31, Apr. 18, 1961, 500 U.N.T.S. 95, https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf.
[5] Id. at art. 32; see also Ana P. Santos, Explainer: What is Diplomatic Immunity and What Does It Have to Do with Migrant Domestic Work?,Pulitzer Ctr. (Aug. 30, 2023), https://pulitzercenter.org/stories/explainer-what-diplomatic-immunity-and-what-does-it-have-do-migrant-domestic-work (providing an example of Filipino diplomats in the People’s Republic of China being shielded from retaliation in the context of overlapping maritime boundary claims).
[6] See Leo Benedictus, A Fine Mess: How Diplomats Get Away Without Paying Parking Tickets, Guardian (Sept. 23, 2016, 12:31 PM), https://www.theguardian.com/cities/2016/sep/23/fine-diplomats-not-paying-parking-tickets.
[7] See id. (noting that the tendencies of diplomats of certain countries to not pay traffic fines may reflect on the state of their home countries’ governments); Sam Tobin, U.S. Diplomat’s Wife Will Not Return to UK for Sentencing Over Fatal Car Crash, Reuters (Dec. 6, 2022, 7:49 AM), https://www.reuters.com/world/uk/us-diplomats-wife-will-not-return-uk-sentencing-over-fatal-car-crash-2022-12-06/ (discussing an American intelligence officer’s wife’s abrupt departure from the United Kingdom following a fatal car accident and the United States’ subsequent refusal to extradite her).
[8] See, e.g., Martina E Vandenberg & Alexandra F Levy, Human Trafficking and Diplomatic Immunity: Impunity No More?, 7 Intercultural Hu. Rts. L. Rev. 77, 77, 84 (2012); see also Santos, supra note 5 (discussing a case study of Filipino domestic workers of Saudi diplomats in the United Kingdom)
[9] See Vandenberg & Levy, supra note 8, at 77.
[10] See Rubin, supra note 2 (detailing how Secretary General Antonio Guterres and former Secretary General Kofi Annan declined to investigate numerous human rights violations by UN organs on the ground); see also Leslie Farhangi, Insuring Against Abuse of Diplomatic Immunity, 38 Stan. L. Rev. 1517, 1517 n.4 (1986) (citing U.S. State Department Concerns about “an increase” in incidents involving diplomats and diplomatic immunity claims); see also Vandenberg & Levy, supra note 8, at 98 (highlighting that only twenty-four trafficking and labor exploitation cases were filed against diplomats and their non-immune relatives between 1994 and 2012, with most dismissed or settled).
[11] David Jones & Jonathan Fried, Diplomatic Immunity: Recent Developments in Law and Practice, 85 Proc. Ann. Meeting (Am. Soc. Int’l L.) 261, 264 (1991).
[12] See Rubin, supra note 2.
[13] Tobin, supra note 7.
[14] Id.
[15] Emily Atkinson, Harry Dunn’s Family “Horrified” US Government Told Killer Not to Attend Sentencing, Independent (Dec. 6, 2022, 9:31 PM), https://www.independent.co.uk/news/uk/crime/harry-dunn-anne-sacoolas-sentencing-b2239740.html.
[16] Id.
[17] Ravelombonjy v. Zinsou-Fatimabay, 632 F. Supp. 3d 239, 243 (S.D.N.Y. 2022).
[18] Id. at 244-46.
[19] Id.
[20] Id. at 247; see also William S. Dodge, SDNY Rejects Immunity for Former Diplomat in Trafficking Case, Transnat’l Litig. Blog (October 27, 2022), https://tlblog.org/sdny-rejects-immunity-for-former-diplomat-in-trafficking-case/ (commenting on several procedural arguments the defendants’ counsel made to get the suit dismissed).
[21] Ravelombonjy, 632 F. Supp. 3d at 255.
[22] Id. at 253; see also Dodge, supra note 19 (detailing the legal classification of the driver as a personal employee of the ambassador rather than being employed by the Beninese mission).
[23] Ravelombonjy, 632 F. Supp. 3d at 254.
[24] Id. at 254-55 (citing Baoanan v. Baja, 627 F. Supp. 2d 155, 170 (S.D.N.Y. 2009)).
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