Rudd, Jonathan L., The FBI Law Enforcement Bulletin
Today, more than any other time in this nation's history, police officers are required to handle incidents involving foreign nationals. Such encounters are generally routine; however, at times, they can become convoluted due to differences in custom, language, and law. (1) These incidents are complicated further when the individual is a foreign official who claims to be entitled to some form of diplomatic immunity. When faced with such a situation, is it possible for a police officer to determine whether or not someone is entitled to the immunity they claim? If so, is the immunity absolute? If not, what are the limitations, if any, on police with regard to searches and seizures as it relates to the foreign official?
Although many believe these issues are reserved for large police departments in Washington, D.C., New York, and Los Angeles, the fact is that foreign government officials and their families often travel throughout the United States on official and unofficial business. According to the U.S. Department of State, more than 100,000 representatives of foreign governments are in the United States. (2) Many of these individuals are afforded some degree of criminal immunity. Accordingly, it is important for all law enforcement officers to be familiar with the myths and realities of diplomatic immunity. This article provides a general overview and offers practical guidance regarding foreign-official immunity from criminal jurisdiction (3) as it relates to law enforcement officers in the United States. (4)
Diplomatic immunity is one of the oldest principles of international law, which dates back to the ancient governments of Greece and Rome. (5) Until the 18th century, diplomatic immunity was generally accepted as a fundamental part of foreign relations based on international custom and practice. In 1708, England formally-recognized diplomatic immunity, and, in 1790, the United States followed suit by passing legislation that granted absolute immunity to diplomats, their family members, and staff. (6) Most people in America today erroneously believe that foreign officials still are afforded absolute immunity from the law for any criminal conduct. In reality, the extent of criminal immunity has been greatly reduced by modern treaties and laws.
In the 1960s, two important conferences took place in Vienna, Austria, where officials from over 90 nations, including the United States, met to discuss and formalize international relations, particularly with regard to the roles, rules, and regulations of diplomatic and consular officials. These conferences resulted in the creation of two multilateral treaties: the 1961 Vienna Convention on Diplomatic Relations (VCDR) (7) and the 1963 Vienna Convention on Consular Relations (VCCR). (8) In addition to these treaties, the U.S. Congress enacted the Diplomatic
Relations Act of 1978 (9) and the International Organizations Immunities Act of 1945. (10) These treaties and statutes, along with additional bilateral agreements between the United States and various other countries, comprise the complex set of rules and regulations that detail the specific types of immunity foreign officials enjoy while in the United States. The effect of these conventions, treaties, statutes, and agreements has been to reduce the degree of criminal immunity enjoyed by visiting foreign officials, their family members, and staff. (11)
LEVELS OF IMMUNITY
Although the exact level of immunity granted to any given foreign official is not as easily discernable as law enforcement officers would like, in general, there are three levels of immunity from criminal jurisdiction that will serve to direct law enforcement in appropriately dealing with issues of immunity. (12)
The first level of immunity, and the one most commonly associated with the term diplomatic immunity, is full immunity. …