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Diplomatic immunity.

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?

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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)

BACKGROUND

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)

Full Immunity

The first level of immunity, and the one most commonly associated with the term diplomatic immunity, is full immunity. As a general rule, persons with full immunity are not subject to the criminal jurisdiction of the United States and, therefore, may not be arrested or significantly detained. Their residences, property, papers, and vehicles may not be entered, confiscated, or searched. Moreover, they may not be forced to testify or otherwise provide evidence in any criminal proceeding and are free from all criminal prosecution. (13)

Although full immunity appears to be fairly absolute, there are some qualifications on the actual extent of that immunity. For example, stopping foreign officials or dependents, even if they have full immunity, to issue a traffic citation for a moving violation is permissible and does not constitute an arrest or significant detention. (14) Additionally, the existence of full immunity does not bar police officers from attempting to interview the subject or obtain consent to search, just as they would in a regular situation. And, of particular importance is the well-established notion that when confronted with a subject entitled to full immunity, police officers do not forfeit the right to defend the safety and welfare of the people they have been sworn to protect. "[I]n circumstances where public safety is in imminent danger or it is apparent that a grave crime may otherwise be committed, police authorities may intervene to the extent necessary to halt such activity." (15)

Official Acts Immunity

The second and more restrictive level of immunity is known as official acts immunity. Individuals with official acts immunity are generally subject to the regular demands of the law--they may be arrested and detained (In some cases, judicial orders may be required). (16) Their residences, property, papers, and vehicles may be entered, confiscated, and searched. (17) However, they are not obligated to testify or otherwise provide evidence in a criminal proceeding regarding matters involving their official duties. Additionally, they may not be prosecuted for criminal acts arising from the performance of official duties. Whether or not an individual is deemed to have been acting in an official capacity generally is considered an affirmative defense that must be raised by the defendant and determined by the U.S. court with subject-matter jurisdiction over the alleged crime. (18)

No Immunity

Third, not everyone affiliated with an embassy, consulate, or international organization is entitled to immunity. In fact, a number of such individuals have no immunity whatsoever. In particular, most foreign officials, their family, and staff members who are U.S. citizens or permanent resident aliens are not entitled to the privileges and immunities discussed herein. (19)

TYPES OF FOREIGN OFFICIALS

The level of immunity, if any, afforded to an individual is based on the place the person works and the nature of the position the person holds. Three general types of foreign officials are entitled to special privileges and immunities within the United States--Diplomatic; Consular; and International Organizations. The level of immunity afforded individuals within each of these groups depends on a number of factors, including the relationship between the foreign country and the United States, the position and function of the individual granted immunity, and the laws governing the different types of foreign officials. (20)

Diplomatic

"Diplomatic missions are traditionally the principal communication link between the country that sends them and the host country. Accordingly, the staffs of diplomatic missions (embassies) are afforded the highest level of privileges and immunities." (21) Members of diplomatic missions who "perform tasks critical to the inner workings of the embassy" enjoy full immunity. (22) This includes diplomatic agents and their family members, as well as members of the administrative and technical staff and their families. (23) Members of the service staff who perform less critical support tasks (e.g., guards, drivers, couriers) have official acts immunity from criminal prosecution only, and their family members enjoy no immunity. Unless specifically agreed to by the United States, the private servants of diplomatic officials (e.g., nannies, cooks, maids) enjoy no immunity. (24)

Consular

"Consulate personnel perform a variety of functions.... Countries have long recognized the importance of consular functions to their overall relations, but consular personnel generally do not have the principal role of providing communication between the two countries--that function is performed by diplomatic agents...." (25) Accordingly, consular officials (whether they be career consular officers, (26) honorary consular officers, (27) or consular employees) are generally granted only official acts immunity. (28) Moreover, consular family members are afforded no immunity.

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International Organizations

The majority of members of international organizations that have offices in the United States are afforded the more limited official acts immunity. "In certain cases, however, the most senior executives of such organizations have been accorded privileges and immunities equal to those afforded diplomatic agents." (29) Family members of officials of international organizations are generally afforded no immunity unless the official is afforded full immunity, in which case the same immunity would be extended to their family. For a quick-reference guide regarding the privileges and immunities, see Figure A. (30)

WAIVER OF IMMUNITY

Privileges and immunities are extended from country to country--not from country to foreign official. Therefore, the foreign government actually holds the privilege, not the foreign official. As such, foreign governments can, and in some cases do, waive immunity. (31) Of particular importance to law enforcement, the Department of State has advised that "[p]olice authorities should never address the alleged commission of a crime by a person enjoying full criminal immunity with the belief that there is no possibility that a prosecution could result. The U.S. Department of State requests waivers of immunity ... where the prosecutor advises that, but for the immunity, charges would be pursued. In serious cases, if a waiver is refused, the offender will be expelled from the United States and the Department of State will request that a warrant be issued and appropriate entries to the National Crime Information Center (NCIC) database be made by the responsible jurisdiction." (32) The Department of State further has emphasized that "effective and informed police work becomes the basis of the prosecutor's decision and the foundation for the Department of State's waiver requests and any subsequent prosecutions or expulsions." (33)

IDENTIFICATION OF FOREIGN OFFICIALS

When law enforcement officers confront foreign officials claiming criminal immunity, it is imperative that they promptly and accurately determine the status of the individual. (34) Foreign officials, their family members, and staff possess various documents that may identify them as a foreign official; however, only one is determinative of immunity status--the identification card issued by the Department of State or, when dealing with members of the United Nations, the U.S. Mission to the United Nations. (35) Currently, the cards have a blue (diplomatic), green (official), or red (consular) border. (36) The front of the card displays the Department of State or United Nations seal, along with a photograph of the foreign official and their identifying information. A brief statement of the bearer's criminal immunity is printed on the back of the card, along with a space for the bearer's signature. (37)

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Foreign diplomatic passports, U.S. diplomatic visas, and tax exemption cards, as well as Department of State-issued vehicle registration, license plates, and driver's licenses, may be an indication that the bearer is entitled to some form of privileges and immunities; however, these are not conclusive proof of immunity and should not be used to verify immunity. (38) Moreover, just because an individual claiming immunity does not have an identification card does not necessarily mean they do not have immunity. There are a number of temporary-duty personnel and other short-term visitors who are afforded differing levels of immunity and may not have received an identification card. (39) This fact highlights the need to contact the Department of State when verifying immunity status. (40)

"The U.S. Department of State's vehicle registration and driver license status records are available to law enforcement agencies through the National Law Enforcement Telecommunications System (NLETS)." (41) Foreign officials are required to display official diplomatic plates on their vehicles. Beginning in August 2007, the Department of State began issuing newly designed diplomatic license plates. Old-style plates will remain in use until December 31, 2008. The new diplomatic plates, like the old ones, will begin with a designator of D (diplomat), C (consular officer), or S (technical and administrative staff) followed by a two-letter country scramble code. United Nations plates continue to follow a reverse format, ending with the one letter designator D or S and preceded by a two-letter country scramble code. See figure B for samples of the old and new license plates.

PRACTICAL APPLICATION

As a practical matter, foreign officials, their family members, and staff are rarely involved in criminal activities. When they are, however, police officers should know how to respond and be familiar with the legal and diplomatic protocols. Most violations by foreign officials involve traffic infractions (illegal parking, speeding, reckless driving, and DWI), shoplifting, and assault. (42) When encountering suspects who claim to have criminal immunity, police officers can meet their duty to protect the public and their obligation to uphold the law by following some basic steps.

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1) Proceed as usual in accordance with standard operating procedures and the law to ensure the safety of everyone involved.

2) As soon as possible under the circumstances, verify the subject's status and respective level of immunity. Whether or not the suspect is able to produce the Department of State-issued identification card, police officers should verify the individual's status by contacting the Department of State or U.S. Mission to the United Nations, as the case may be. (43) "[R]epresentatives are available 24-hours daily to assist in emergency situations and when immediate confirmation of a person's status is required." (44) See figure C for contact information. (45)

3) If the individual has full immunity, he or she should not be handcuffed unless the person poses an immediate threat to safety. Additionally, the individual may not be arrested or otherwise significantly detained. Accordingly, once all pertinent information is obtained, the subject must be released. If, however, the subject is unable to drive safely, the person should obviously not be allowed to drive. (46)

4) Prepare a detailed report fully describing the incident and, thereafter, fax or mail a copy of the report to the U.S. Department of State in Washington, D.C., or to the U.S. Mission to the United Nations in New York.

CONCLUSION

It is important to note that "[d]iplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions. The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments." (47) The overwhelming majority of foreign officials are mindful of the need to obey the law and are committed to maintaining healthy diplomatic relations with the United States. Likewise, when handling incidents involving foreign officials, law enforcement officers should remember that the individual is an official representative of the foreign government and should be granted the appropriate degree of respect. Law enforcement officers also should promptly ascertain the level of immunity afforded such individuals, if any, and understand its parameters so that the officer can appropriately and effectively enforce the law.

Endnotes

(1) As discussed in a previous article, special obligations regarding foreign government notification and access exist when police officers arrest or otherwise significantly detain a foreign national in the United States. See Jonathan L. Rudd, "Consular Notification and Access: The 'International Golden Rule,'" FBI Law Enforcement Bulletin, January 2007, 22-32.

(2) U.S. Department of State, Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities, (Revised May 1998), page 1 of a 26-page booklet, (hereafter Diplomatic and Consular Immunity).

(3) The purpose of this article is to focus on the concept of immunity from criminal jurisdiction, and, therefore, the issue of immunity from civil jurisdiction, which has many parallels but is a distinct and separate matter, will not be addressed herein.

(4) For a more detailed discussion of this topic, see Diplomatic and Consular Immunity.

(5) For an extensive historical review of diplomatic immunity, see Linda S. Frey and Marsh L. Frey, Ohio State University, The History of Diplomatic Immunity (1999).

(6) Diplomatic and Consular Immunity, at 2.

(7) Vienna Convention on Diplomatic Relations, Apr. 18, 1961 23 U.S.T. 3227; T.I.A.S. 7502; 500 U.N.T.S. 95, which entered into force in the United States in 1972. For a comprehensive overview of the VCDR, see Eileen Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations, 2nd edition (1998).

(8) Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77; T.I.A.S. No. 6820; 596 U.N.T.S. 261, which officially became U.S. law as a treaty in 1969.

(9) 22 U.S.C., [section] 254.

(10) 22 U.S.C. [section] 288. While not steeped in the same historical tradition of international common law and practice as consular and diplomatic immunity, a relatively new phenomenon in the area of foreign official immunity has been the emergence of international organizations like the United Nations. Members of international organizations receive privileges and immunities as directed by treaties and by the International Organizations Immunities Act. See, Grant V. McClanahan, Diplomatic Immunity: Principals, Practices, Problems (New York, NY: St. Martin's Press, 1989).

(11) Diplomatic and Consular Immunity, at 2.

(12) See Eric Moore, Regional Organized Crime Information Center (ROCIC) Special Research Report, Diplomatic Immunity: Rules of Engagement for Law Enforcement (2004), 3-4; and Clay Hays, Diplomatic Motor Vehicle Office, U.S. Department of State, What Is Diplomatic Immunity? (March 2000); http://www.calea.org.

(13) Diplomatic and Consular Immunity, at 4, 5.

(14) "A copy of the citation and any other documentation regarding the incident should be forwarded to the U.S. Department of State as soon as possible." Although someone with immunity may not be subject to the penalty, the U.S. Department of State issues driver licenses to all foreign officials and tracks driver histories and, where necessary, suspends licenses, issues points, and directs persons to leave the country. First-time offenders as well as repeat offenders are subject to having their licenses suspended or revoked. However, this can occur only if police officers notify the State Department using the phone number on the back of the Department of State drivers license when there is a violation. Diplomatic and Consular Immunity, at 17. See the Practical Applications section of this article, step 4.

(15) Diplomatic and Consular Immunity, at 14.

(16) Career consular officers may be arrested only for felony offenses if the arrest is based on a warrant issued by a judicial officer or similar judicial order. See Id. at 6,7.

(17) Provided these items are not within the embassy grounds.

(18) Law enforcement officers, Department of State officers, or diplomatic mission or consulate officers generally are not authorized to determine whether a given set of facts constitutes an official act. Diplomatic and Consular Immunity, at 6, 7.

(19) "A member of a mission, other than a diplomatic agent, permanently resident in, the United States for purposes of Article 38(2) of the VCDR and Article 71(2) of the VCCR enjoys no privileges and immunities pursuant to the Vienna Conventions." Id. at 5, at footnote 4. However, see infra note 27.

(20) Members of diplomatic missions and their affiliates are granted varying levels of privileges and immunities under the VCDR and the Diplomatic Relations Act (22 U.S.C. [section] 254); members of consular posts attain their privileges and immunities from the VCCR; and members of international organizations receive any privileges and immunities as directed by the International Organizations Immunities Act. In addition to these laws and treaties, the United States has entered into bilateral treaties with certain countries, which provide for differing levels of immunity in accordance with the individual treaties.

(21) Diplomatic and Consular Immunity, at 4.

(22) Id. at 5.

(23) "The United States defines members of the household to include: spouses, children until the age of 21 (until the age of 23 if they are full-time students at an institution of higher learning), and such other persons expressly agreed to by the U.S. Department of State in extraordinary circumstances." Diplomatic and Consular Immunity, at 5, footnote 3.

(24) Diplomatic and Consular Immunity, at 4, footnote 2.

(25) Id. at 6.

(26) For a distinction regarding career consular officers, see supra note 16.

(27) Honorary consular officers are U.S. citizens or permanent resident aliens who are granted official acts immunity for acts performed in their official capacity only. Diplomatic and Consular Immunity, at 7.

(28) Some countries have special bilateral agreements with the United States granting greater immunity to consular officials. "Law enforcement officers should be aware that these arrangements are not uniform and the State Department identification cards issued to these persons reflect the appropriate level of immunity." Diplomatic and Consular Immunity, at 8.

(29) "This is the case for the Secretary General of the United Nations and for all Assistant Secretaries-General of the United Nations, Principal Resident Representatives of the International Monetary Fund and the World Bank, as well as some senior officials of the Organization of American States secretariat." Id. at 8.

(30) Diplomatic and Consular Privileges and Immunities from Criminal Jurisdiction: Summary of Law Enforcement Aspects. Diplomatic and Consular Immunity, at 26.

(31) Diplomatic and Consular Immunity, at 6.

(32) Id.

(33) Id.

(34) Id. at 10.

(35) Id.

(36) The State Department is beginning to issue new identification cards that will differ from the traditional cards described.

(37) Diplomatic and Consular Immunity at 10.

(38) Id. at 13, 14.

(39) Id. at 6, 8, 9.

(40) See Practical Applications section of this article, step 2.

(41) Diplomatic and Consular Immunity, at 12.

(42) Id. at 16.

(43) Id.

(44) Id. at 12.

(45) Id. at 13.

(46) Standard field sobriety tests may be offered to people who enjoy full immunity; however, they may not be compelled. Diplomatic and Consular Immunity, at 17.

(47) Diplomatic and Consular Immunity, at 2.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

By JONATHAN L. RUDD, J.D.

Special Agent Rudd serves as a legal instructor at the FBI Academy.

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Figure C Immunity Issues: Telephone Numbers

State Department representatives are available 24-hours daily to assist
 in emergency situations and when immediate confirmation of a person's
 diplomatic or consular immunity status is required.

For information on diplomatic and consular personnel and personnel of
 International organizations other than the United Nations:

During Normal Business Hours:
U.S. Department of State federal license 202 895-3532 Fax 202 895-3646
 tags, registrations, or other motor
 vehicle information
U.S. Department of State drivers licenses 202 895-3521
 and general licensing information
For reporting traffic incidents or 202 895-3521
 accidents, issuance of citations, etc.,
 involving foreign missions personnel
Diplomatic agents and family members 202 647-1664
Embassy administrative, technical, and 202 647-1405
 service staff and families
Consular personnel and families 202 647-1404
International Organizations 202 647-1402
Please send copies of incident reports Fax 202 895-3613
 and citations to: Diplomatic Security
 Service, Protective Liaison Division

After Normal Business Hours:
All inquiries should be made to the 571 345-3146 1-866-217-2089
 Diplomatic Security Command Center,
 Department of State (operates 24 hours
 daily)

For information on United Nations
 personnel only:

During Normal Business Hours:
Diplomatic agents and family members 212 415-4131
U.N. Mission staff and family members 212 415-4168
U.N. Secretariate employees 212 415-4131 or 212 415-4168
U.S. Department of State license tags, 212 415-4500
 registration, or other motor vehicle
 information

After Normal Business Hours:
Information is available from the 212 415-4444
 Communications Section of the U.S.
 United Nations (operates 24 hours
 daily)
Please send copies of police reports to: 212 415-4162
 USUN Host Country
COPYRIGHT 2008 Federal Bureau of Investigation
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2008, Gale Group. All rights reserved.

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Title Annotation:Legal Digest
Author:Rudd, Jonathan L.
Publication:The FBI Law Enforcement Bulletin
Geographic Code:1USA
Date:Feb 1, 2008
Words:3944
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