Who enjoys immunity?
Aside from the issue of vaccinations, immunity means the enjoyment of legal protection from criminal jurisdiction. In the case of diplomats, immunity is derived from the special status afforded to representatives of other states since ancient times. These unwritten rules were codified in the early 1960s by the Vienna Convention on Diplomatic Relations (VCDR) and the Vienna Convention on Consular Relations (VCCR).
Whether or not a diplomat can invoke immunity cannot be determined solely from their (diplomatic) passport. At the end of the day, immunity depends on whether diplomats are accredited in a country, which can usually be determined from their protocol card.
Scope and limits of immunity
Immunity not only offers protection against criminal jurisdiction, but also, for example, against civil jurisdiction. Article 31 of the VCDR stipulates only a handful of exceptions to this. Immunity only affords protection in the receiving State, i.e. diplomats do not enjoy special status in their countries of origin.
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of
- (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
- (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State
- (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.
Even though they cannot be held to legal account in the receiving State, Article 41 (1) of the VCDR stipulates that diplomats must nevertheless respect the laws and regulations of the receiving State. The Courts Constitution Act implements these international provisions for the German legal system. For example, Section 18 of the Act stipulates that German courts do not exercise jurisdiction over diplomats, which means that they cannot be the subject of legal proceedings. Accordingly, the courts do not decide on the guilt or innocence of foreign diplomats.
Government mandate and protection against influence
But why are there all of these privileges? This is due to the role played by diplomats, as the preamble of the VCDR explains. The preamble states that the purpose of such privileges is not to benefit individuals, but to ensure the efficient performance of the functions of diplomatic missions as representing States. According to Article 3 of the VCDR, these tasks include, for example, representing the sending State and protecting its interests in the receiving State and ascertaining conditions and developments in the receiving State on behalf of the sending State. However, these tasks on behalf of the sending State can only be properly performed if diplomats can exercise such duties independently and without being influenced by the receiving State. These privileges thus help, in particular, to preserve diplomats’ independence from the receiving State, for example by precluding any threat of arrest or detention or legal consequences from the outset. At the same time, however, they are also an expression of appreciation for the respective other country represented by the diplomat.
Inviolability and other privileges
The widely known concept of immunity is flanked by the principle of the inviolability of diplomats. This is because immunity only offers protection against legal proceedings, but not against coercive police measures, such as arrest. The fact that diplomats may not be arrested or fear other consequences is based on the concept of inviolability, which is enshrined in Article 29.
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
The VCDR also provides for other privileges, such as exemption from certain taxes and social security provisions. Income taxes and the like must, as a rule, be paid in the sending State of the diplomat. However, fees and charges for services such as rubbish collection must also be paid for by diplomats.
What is the procedure in the event of persistent violations of the law?
Despite the fact that there is no legal recourse, the vast majority of diplomats abide by the domestic laws and regulations. As representatives of their country in the receiving State, the behaviour of diplomats also has a bearing on the reputation of their country as a whole. It is therefore in the embassies’ own interest that their diplomats do not make a bad impression by disregarding local laws and regulations.
In the case of frequent violations, the ministry of foreign affairs in question often discusses such matters with the respective embassy. In the course of such discussions, the ministry of foreign affairs could, for example, request that the embassy withdraw a particular diplomat. Such requests are usually granted. In extreme cases, a diplomat may be declared a “persona non grata” as a last resort and must then be recalled. The sending State has an obligation to comply with such a request under international law. Further information about the declaration of persona non grata can be found here.
Immunity from criminal jurisdiction does not protect diplomats in their country of origin, and they may certainly be held criminally liable there.
Immunity in other cases
Diplomats are not the only people to enjoy immunity. Seconded staff of consulates enjoy similar – albeit fewer – rights under the Vienna Convention on Consular Relations.
Representatives of a state also enjoy immunity during official visits to another country. This applies in particular to heads of state and government and to foreign ministers and their escorts, who should be allowed to represent their country abroad without any restrictions.
In addition, similar rules apply to employees of international organisations. These are governed by the UN agreements or, in the case of other organisations, by the respective headquarters agreement.