In order to exchange information, messengers were allowed to travel from tribe to tribe without fear of harm. They were protected even when they brought bad news. Today, immunity protects the channels of diplomatic communication by exempting diplomats from local jurisdiction so that they can perform their duties with freedom, independence, and security. Diplomatic immunity is not meant to benefit individuals personally; it is meant to ensure that foreign officials can do their jobs.
Under the concept of reciprocity, diplomats assigned to any country in the world benefit equally from diplomatic immunity. Members of an embassy's service staff and consular employees are immune only for acts performed as part of their official duties It is true that diplomats are exempt from the criminal, civil and administrative jurisdiction of the host country.
Diplomatic privileges and immunities guarantee that diplomatic agents or members of their immediate family: May not be arrested or detained May not have their residences entered and searched May not be subpoenaed as witnesses May not be prosecuted. This led to demands from many quarters, including by Prime Minister Boris Johnson, that the US waive her immunity and return her to the UK for prosecution. In the latest news, the Foreign Secretary has confirmed that as Ms Sacoolas has left the UK, diplomatic immunity no longer applies, so there is no impediment to the criminal investigation proceeding — apart, of course, from the fact that she is not present in the country.
The rationale for immunity, for both diplomats and their families, is simple and fundamental: to protect the envoy from any interference in the performance of his or her functions. The incident, and the public reaction to it, raise two issues of particular interest. First, was Ms Sacoolas ever entitled to diplomatic immunity, and second, is it time to revisit the extent of that immunity?
In international law, diplomatic immunity is governed by the Vienna Convention on Diplomatic Relations VCDR , to which almost every state is a party. In essence, a diplomat in post is completely immune from criminal proceedings, and almost completely immune from civil proceedings with exceptions not relevant here. This immunity extends to the family of the diplomat, so that Ms Sacoolas could not be prosecuted in the UK for as long as her husband held whatever position it was that entitled him to diplomatic immunity.
Diplomats retain immunity forever for their official acts, but that condition obviously cannot apply to their families. So if Ms Sacoolas were to return, she would only have immunity if her husband were still in post, and media reports suggest that he has also left the UK. But Mr Sacoolas was not a diplomat — neither he nor his wife was listed in the UK Diplomatic List of all foreign diplomatic staff in London. But even if it did apply, the Act does not extend to family members.
Accordingly, an embassy secretary who fails to pay his personal home mortgage premium could not only lose his title but also be sued for damages; though he may not be evicted. Yet other embassy employees chauffeurs, for example , who only indirectly support diplomatic activities, enjoy the lowest degree of immunity.
They have either criminal or civil immunity only for acts performed in connection with their embassy role. Their family members enjoy no immunity at all. There are exceptions. In rare cases, both the second and third categories of embassy personnel above may enjoy as much immunity as diplomatic agents. But this happens only when the home country and the host country enter a special agreement or treaty for that purpose. Moreover, home country governments can waive diplomatic immunity.
Finally, no immunity applies to embassy employees or the family members of such employees who are nationals or permanent residents of the host country. Consular officers career consuls and other foreign government officials responsible for issuing travel documents, promoting commerce or tourism, and similar functions enjoy full immunity for acts performed in connection with their official function.
However, they are otherwise fully subject to criminal prosecution, except that they may be detained only in felony cases. No such exception applies to their family members, who enjoy no immunity at all. Their property can be searched by police officers. They can also be sued like private citizens—although they are prohibited by international law from engaging in commercial or professional activities outside their official functions.
Consulates' administrative and technical staff are not prohibited from engaging in commercial or professional activities outside their official functions.
However, they enjoy immunity only for acts performed in connection with their official functions. Other consular employees enjoy almost no immunity, except that they cannot be forced to appear as witnesses in U. Here again, there are exceptions. Consular personnel may acquire almost as much immunity as diplomatic agents based on a special treaty between their home country and their host country. No immunity applies to consular personnel who are nationals or permanent residents of the host country, except that honorary consuls enjoy immunity for acts performed in connection with their official functions.
Interestingly, international law is often less important than national laws when it comes to defining the immunity of representatives and personnel of international organizations such as the United Nations or the International Monetary Fund. Under U. Similarly, most international organization personnel enjoy immunity only for acts performed in connection with their official function, while some but not all high-ranking officials may sometimes enjoy almost as much immunity as diplomatic agents.
Diplomatic immunity does not mean that its beneficiaries can do whatever they want and get away with it. Police officers are allowed to disregard it whenever necessary to prevent a grave crime or an imminent danger to public safety.
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