Diplomatic Immunity

views updated

DIPLOMATIC IMMUNITY

A principle ofinternational lawthat provides foreign diplomats with protection from legal action in the country in which they work.

Established in large part by the Vienna conventions, diplomatic immunity is granted to individuals depending on their rank and the amount of immunity they need to carry out their duties without legal harassment. Diplomatic immunity allows foreign representatives to work in host countries without fully understanding all the customs of that country. However, diplomats are still expected to respect and follow the laws and regulations of their host countries; immunity is not a license to commit crimes.

In the United States, several levels of immunity are granted: the higher the rank, the greater the immunity. diplomatic agents and their immediate families have the most protection and are immune from criminal prosecution and civil lawsuits. The lowest level of protection is granted to embassy and consular employees, who receive immunity only for acts that are part of their official duties—for example, they cannot be forced to testify in court about the actions of the people they work with. The Diplomatic Relations Act of 1978 [22 U.S.C.A. § 254a et seq.] follows the principles introduced by the Vienna conventions. The United States has had a tendency to be generous when granting diplomatic immunity to visiting diplomats because a large number of U.S. diplomats work in host countries less protective of individual rights. If the United States were to punish a visiting diplomat without sufficient grounds, U.S. representatives in other countries could receive harsher treatment.

In the United States, if a person with immunity is alleged to have committed a crime or faces a civil lawsuit, the department of state alerts the government that the diplomat works for. The Department of State also asks the home country to waive immunity of the alleged offender so that the complaint can be moved to the courts. If immunity is not waived, prosecution cannot be undertaken. However, the Department of State still has the discretion to ask the diplomat to withdraw from her or his duties in the United States. In addition, the diplomat's visas are often canceled, and the diplomat and her or his family are barred from returning to the United States. Crimes committed by members of a diplomat's family can also result in dismissal.

Abuse of diplomatic immunity was made more visible by media coverage in the early 1990s. The abuse spans a variety of activities, ranging from parking violations to more serious criminal behavior such as domestic abuse and rape. In February 1995 Mayor Rudolph Giuliani of New York City forgave $800,000 in parking tickets accumulated by foreign diplomats. Although no clear reason was given, the action, which was perhaps meant as a show of goodwill, sent a message to visiting diplomats that the U.S. government may be willing to allow diplomats greater leniency than its own private citizens. This is a good example of how some diplomatic debts have either been erased or not collected. However, outstanding debts may not be the worst illustration of how diplomatic immunity can be abused.

Diplomats and their families have also been known to use diplomatic immunity to avoid prosecution for criminal behavior. For example, in a 1983 case the New York City Police Department suspected a diplomat's son of 15 different rapes. The son was allowed to leave the United States without ever being taken to court because he claimed diplomatic immunity. If diplomatic immunity is used as a shield, the police cannot prosecute, no matter how serious the crime may be.

U.S. citizens and businesses are often at a disadvantage when filing civil claims against a diplomat, especially in cases of unpaid debts, such as rent, alimony, and child support. In the summer of 1994 U.S. diplomat Victor Marrero reportedly complained to the united nations secretariat that foreign diplomats' debts in the United States were $5.3 million. The New Yorker later reported that a well-informed source had said the figure had risen "closer to $7 million."

The bulk of diplomatic debt lies in the rental of office space and living quarters. Individual debts can range from a few thousand dollars to $1 million in back rent. A group of diplomats and the office space in which they work are referred to as a mission. Creditors cannot sue missions individually to collect money they owe. Landlords and creditors have found that the only thing they can do is contact a city agency to see if they can try to get some money back. They cannot enter the offices or apartments of diplomats to evict them because the Foreign Sovereign Immunities Act says that "the property in the United States of a foreign state shall be immune from attachment, arrest and execution" (28 U.S.C.A. § 1609). This has led creditors who are owed money by diplomats to become more cautious about their renters and to change their rental or payment policies. For example, Milford Management, a New York-based company that rents deluxe apartments, is owed more than $20,000 in back rent from diplomats from five different countries. Milford and other creditors have created their own "insurance" policies by refusing to rent to foreign missions unless there is a way of guaranteeing payment, such as collecting money in advance.

The issue of abusing diplomatic immunity in family relations, especially alimony and child support, has become enough of a widespread problem that it prompted discussion at the 1995 United Nations Fourth World Conference on Women, in Beijing. Historically, the United Nations has not gotten involved with family disputes and has refused to garnishee the wages of diplomats who owe money for child support, citing sovereign immunity. However, in September 1995, the incumbent head of legal affairs for the United Nations acknowledged there was a moral and legal obligation to take at least a partial responsibility in family disputes. Deadbeat "diplodads" were increasing in numbers in the United Nations: several men who had left their wives and children were still claiming U.N. dependency, travel, and education allowances for their families even though they are no longer supporting those families. One U.S. woman, Barbara Elzohairy, and her daughter were threatened with eviction from their New Jersey apartment because they did not pay their rent. Their reason? Elzohairy's husband, a U.N. representative from Egypt, refused to pay her $16,000 in courtordered support. The United Nations told diplomats they must meet their moral obligations, but there were no consequences if they did not.

divorce is difficult for the spouses of foreign diplomats, as illustrated in the case of Fernandez v. Fernandez, 208 Conn. 329, 545 A.2d 1036, 57 USLW 2115 (Conn., Jul 19, 1988) (NO. 13283). This case involved a U.S. citizen, Barbara Fernandez, who wanted a divorce from her husband, Antonio Diende Fernandez, a U.N. representative from the Republic of Mozambique. Along with the divorce, Fernandez wanted a monetary settlement and property rights to the home the couple owned in a New York suburb. Her husband asked that the courts dismiss her claim on the grounds that he had diplomatic immunity. Under the trial court's interpretation of the Vienna Convention, a U.S. citizen who marries a foreign diplomat is married until either the diplomat dies or the diplomat's country grants permission for divorce proceedings. The Republic of Mozambique gave the court permission to grant the divorce but would not allow the court to make a decision on Fernandez's property or monetary claims. The case went on to the Connecticut Supreme Court, which dissolved the marriage and allowed Fernandez to claim property rights under article 31 of the Vienna Convention.

Article 31 gives diplomats immunity from all civil cases except for those that involve "private immovable property." The Connecticut Supreme Court interpreted that exception to apply to Fernandez's claim on the home, which was valued at more than $8 million. Article 31 of the Vienna Convention does not allow the "private residence of a diplomatic agent" to be included in a civil suit. However, the Connecticut Supreme Court declined to consider this article as a form of defense for Fernandez's husband. The Vienna Convention specifically does not allow exceptions for spouses to seek monetary compensation in divorce proceedings, so Fernandez was not granted any money by the Connecticut court.

The Fernandez decision did not settle all the issues revolving around dissolution of diplomats' marriages, such as whether U.S. courts can grant a divorce without the permission of the diplomat's country. Critics of Fernandez say it might cause foreign countries to think twice before granting permission to dissolve marriages because property claims can then also be brought against the diplomats.