Is Daddy a Diplomat? Make Sure You Understand Diplomatic Immunity

Diplomatic immunity is a principle of customary international law – developed over the centuries through common practice – designed to make it easy for countries to conduct diplomacy, with the objective of resolving differences without going to war. That’s a laudable goal if there ever was one.

The idea is that diplomats, even from countries that are not on friendly terms with the United States (or whatever country they’re visiting), will be given safe passage, which includes immunity from prosecution and civil lawsuits. This is based on the assumption that conducting diplomacy and averting war is more important than making a diplomat pay their parking tickets. That’s probably a fair assessment.

However, diplomatic immunity is not a magical get-out-of-jail-free card. And if you are a diplomat or the relative of a diplomat, there are limits you should be aware of. More importantly (and more likely), if you’re the victim of a crime or tort committed by a diplomat or their dependant, you may have legal recourse.

One recent case (also reported here) illustrates an example of somebody seriously over-estimating the scope of diplomatic immunity: the son of an ex-diplomat defrauded a law firm of over $300,000, and apparently assumed that diplomatic immunity applied to him. He was sadly mistaken, and is now serving an 18-month prison sentence.

So, what does diplomatic immunity entail, and who does it apply to? It usually applies to people who are sent to one country from another in an official diplomatic capacity, with some discretion to act on their home country’s behalf, and that person’s dependants. It usually doesn’t apply to other employees of embassies or consulates.

Diplomatic immunity does, in theory, allow diplomats and their dependants to commit crimes in the United States without any legal repercussions under local laws. However, it’s important to know that diplomatic immunity is technically a privilege of the diplomat’s host country, not the diplomat himself. This means that if the diplomat commits a serious crime (such as rape or murder), the host country can request that the diplomat’s home country waive immunity with respect to that particular diplomat. If the government of the other country agrees, the United States can prosecute the diplomat for whatever crimes they’re accused of.

Otherwise, the diplomat can be expelled from the United States, and returned to their home country. In the case of serious crimes, this is often done with the understanding that the diplomat’s home country will prosecute the diplomat.

Of course, most relevant to the average person is the possibility of suing a diplomat if they’ve caused harm. Diplomats enjoy significant immunity from civil liability, though it is not quite as extensive as their immunity from criminal prosecution.

There have been several high-profile lawsuits against diplomats in the U.S. in recent years, involving things like personal injury, family law, and employment law.

For example, there have been cases of diplomats in the United States employing domestic workers at their U.S. residence, and completely ignoring American labor laws. The most extreme of these cases are real horror stories, involving employers ignoring local laws covering minimum wage, withholding pay, taking employees’ passports and refusing to return them, depriving employees of food, as well as outright physical and emotional abuse.

There have also been cases of diplomats driving drunk, and causing personal injury or death to other people, occasionally escaping liability.  Also, it’s common practice for lenders to refuse to extend credit to diplomats, because it’s nearly impossible to sue them for repayment of their debts.

So, when can you sue a diplomat? Generally, diplomats can be sued for conduct that takes place outside the scope of their official duties. So, if a diplomat is “off the clock,” rents a car with his own money, gets drunk at a bar, and then gets into a car accident, he can probably be sued by anyone injured in that accident.

On the other hand, if he’s driving a car provided by the U.S. government, or paid for by the government of his home country, a victim of a car accident might not be able to sue.

In the employment context, diplomats occasionally bring workers to the United States illegally, from poor countries (primarily in Asia and Eastern Europe), to serve as housekeepers, presumably because they will accept harsher working conditions and lower pay than American workers. Many lawyers have argued that diplomatic immunity doesn’t cover this activity, and the workers can sue their employers, because human trafficking is a commercial activity engaged in for personal profit, having nothing to do with the diplomat’s official duties, and some courts have been receptive to these arguments.

No matter what type of case a diplomat in the U.S. is involved in, it’s going to be an uphill battle for the other side. Unfortunately for victims of wrongdoing by diplomats, the general consensus is that this is just how it has to be.

Just about every country in the world has decided that the benefit of maintaining open diplomacy outweigh the risks that a diplomat will commit a crime against a citizen of the country they’re visiting.

In the most extreme cases, we have to strike a balance between competing interests. We can’t let crimes like murder slide, but at the same time, a horrible crime doesn’t make the importance of international diplomacy go away. It’s a simple fact of life that this balance may never be perfect, and will sometimes lead to unfair results.

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