Diplomatic Immunity: How Much is Too Much?

Posted on January 28, 2011 in Specials

By Neha Bhandarkar:

Diplomatic immunity is a form of legal protection and a policy held between governments, which ensures that diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country’s laws (although they can be expelled).

Indian envoys staying abroad enjoy diplomatic immunity, but at the same time it also needs a constant check considering the recent case of Anil Verma, an Indian diplomat in UK, also the third-most senior diplomat in the Indian High Commission who was accused of assaulting his wife in London. The government of UK has asked the Indian government to surrender the diplomatic immunity granted to Anil Verma so that he can be tried in London.  He was transferred back to India and his wife has gone missing with their son since then. The British Foreign Officials have very strongly opposed this egregious act and have strongly stated that the Foreign Office will not tolerate diplomats working in UK breaking the law and that they expect them to respect the law in the UK same way as their diplomats do in other countries.

The very stature of the Indian envoys deployed in foreign countries makes them in charge for their services and also accountable at the same time if they are found guilty of breaching any law.

Vienna Convention on Diplomatic Relations in 1961 has a much longer history as a concept and custom. Many principles of Diplomatic Immunity are now considered to be a customary law. The Vienna Convention provides for specific measures that can be taken by both the home and host countries in cases of misuse or abuse of diplomatic privileges and immunities. On the whole, diplomatic privileges and immunities have served as efficient tools facilitating relations between States. No UN Member State has so far proposed cancellation of the Convention or re-writing its provisions.

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

Special privileges for diplomatic personnel grow up partly as a consequence of sovereign immunity, independence and equality of states and partly as an essential requirement of the international system. The prime motive behind extending immunities and privileges by States to their diplomatic representatives is to ensure independence in the performance of their official functions.

However diplomatic immunity has its own pros and cons that differ for different nations. Linda Frey, Professor of history in University of Montana writes in her book The History of diplomatic immunity which traces the origin of diplomatic immunity from ancient Greek to today, “Immunity was not accorded to give people impunity, but that’s what it has done.”

According to her, diplomatic immunity is a problem for developing countries, especially those countries which are struggling to form stable governments following recent decolonization. One of the most common abuses is failure to pay for basic services in the host country, such as housing and health care. Traffic violations, automobile accidents and the smuggling of prohibited goods – from alcohol to antiques to weapons – are some of the most common crimes involving diplomats. The advantage of diplomatic immunity is to protect diplomats from repercussions of their official activities that the host country might find offensive or deem illegal. Immunity also allows diplomats to speak freely and to meet with dissident elements of a country that might be off-limits even to their own people.

It should also be noted that immunity is not automatically extended to all members of embassy or consulate staff, only those on the “diplomatic list.” Other officials can be granted immunity as well, but that is up to the receiving country.

The very concept of diplomatic immunity must be handled in responsible terms keeping in mind the call of duty that comes with the diplomats’ importance which they earn for themselves, since the freedom which they earn for themselves as representatives in other countries must be valued and taken care of.