The History of Diplomatic Immunity

Ancient Times:

Protections afforded to foreign envoys varied greatly in the ancient world, though concept of diplomatic immunity is a very ancient one, and probably dates back around the first time a situation required it, when there was more than one civilization.

For example, the  concept can be found in ancient Indian epics like Mahabharata (around 4th century BC) where messengers and diplomats were given immunity from capital punishment (execution).

Greek heralds, who were recognized as inviolable by the city-states, procured safepassage for envoys (diplomatic agent of 2nd rank, next in status after an ambassador- adiplomat, a representative, or a messenger.) prior to negotiations. However, the inviolability of envoys was not  typically respected by third parties.  As empires in China, India, and the Mediterranean grew more powerful, diplomatic protections decreased.

However, Hammurabi, a Babylonian ruler and first lawgiver in 2nd-millennium BC, was recorded as having violated the spirit of diplomatic immunity by refusing to provide safe passage of foreign envoys who brought him a message he didn’t like. This means that by as late as 4,000 years ago, the concept of diplomatic immunity was already established.

During the evolution of international justice, many wars were considered rebellions or unlawful by one or more combatant sides. In such cases, the servants of the “criminal” sovereign were often considered accomplices and their persons violated.

In other circumstances, harbingers of inconsiderable demands were killed as a declaration of war. Herodotus records that when heralds of the Persian king Xerxes demanded “earth and water” (i.e., symbols of submission) of Greek cities, the Athenians threw them into a pit and the Spartans threw them down a well for the purpose of suggesting they would find both earth and water at the bottom, these often being mentioned by the messenger as a threat of siege.

However, even for Herodotus, this maltreatment of envoys is a crime, and he immediately recounts a story of divine vengeance befalling Sparta for this deed.A Roman envoy was urinated on as he was leaving the city of Tarentum. The oath of the envoy, “This stain will be washed away with blood!”, was fulfilled during the Second Punic War.

The Islamic Prophet Muhammad sent and received envoys and strictly forbade harming them. This practice was continued by the Rashidun caliphs who exchanged diplomats with the Ethiopians and the Byzantines. This diplomatic exchange continued during the Arab–Byzantine wars.Classical Sharia called for hospitality to be shown towards anyone who has been granted amān (or right of safe passage) to any emissary bearing a letter or another sealed document. The duration of the amān was typically a year. Envoys with this right of passage were given immunity of person and property. *They were exempt from taxation, as long as they didn’t engage in trade.

Genghis Khan – The Field MuseumDiplomatic Passport

As diplomats by definition enter the country under safe-conduct, violating them is normally viewed as a great breach of honor, although there have been numerous cases in which diplomats have been killed.

Genghis Khan and the Mongols were well known for strongly insisting on the rights of diplomats, and they would often take terrifying vengeance against any state that violated these rights. The Mongols would often raze entire cities in retaliation for the execution of their ambassadors, and invaded and destroyed the Khwarezmid Empire after their ambassadors had been mistreated.

The law of diplomatic immunity was significantly developed by the Romans, who grounded the protection of envoys in religious and natural law, a system of norms thought to apply to all human beings and derive from nature rather than from society.

In Roman law the untouchablestatus of ambassadors was guaranteed even after the outbreak of war.

Great thinkers such as Cicero and Machiavelli helped smooth out its rough points. Its customs have been created by interactions between such huge statesmen as Peterthe Great and Queen Elizabeth I.

During the Middle Ages in Europe, envoys and their entourages continued to enjoy the right of safe passage. A diplomat was not responsible for crimes committed before his mission, but he was answerable for any crimes committed during it.

These were still confined to Western Europe and were closely tied to the prerogatives of nobility. Thus, an emissary to the Ottoman Empire could expect to be arrested and imprisoned upon the outbreak of hostilities between his state and the empire.

During the Renaissance permanent rather than ad hoc embassies developed- when the number of embassy personnel grew the immunities accorded them also expanded.

When the Reformation divided Europe ideologically, states increasingly turned to the legal fiction of extraterritoriality—which treated diplomats, their residences, and their goods as though they were located outside the host country—to justify diplomatic exemption from both criminal and civil law.

The doctrine of quasi extra territorium (Latin: “as if outside the territory”) was developed by the Dutch jurist Hugo Grotius to sanction such privileges.

During the 17th and 18th centuries other theorists turned to natural law to define, justify, or limit the increasing number of immunities. These theorists used natural law, with its appeal to universal moral injunctions, to argue that the representative nature of a diplomat and the importance of his functions—especially that of promoting peace—justified his inviolability.

Because immunities varied greatly between jurisdictions, and some offered few if any  to protect their envoys countries increasingly resorted to laws—such as the Act of Anne (1709) in England, which exempted ambassadors from civil suit and arrest.

Treaties such as the 17th-c agreement between England and the Ottoman Empire : forbade searches of the British embassy, exempted the servants of embassies from taxes, and allowed the ambassador wine for his own use.

The French Revolution disrupted this system, as the revolutionary state and Napoleon imprisoned numerous diplomats who were accused of working against France. Thomas Jefferson disdained the concept of diplomatic immunity, taking the French Revolution’s view that it was simply implicit agreements among nations to allow spies and subversives within one another’s borders. This was ironic because he was the U.S. ambassador to France around that time. Although the French Revolution (1789) challenged the basic foundations of the ancient régime, it reinforced one of its hallmarks, diplomatic inviolability.

By the late 19th century, the expansion of European empires had spread European norms and customs, such as diplomatic immunity and the legal equality of states, throughout the world.

Because of the increasing number of privileges and immunities enjoyed by envoys, some theorists sought to undermine the concept of extraterritoriality by highlighting its attendant abuses, such as the granting of asylum in embassies to notorious criminals and smugglers.

In particular, legal positivists—who argued that the law of diplomatic immunity should be based on treaties and precedent—strove to reduce what they considered the excessive privileges of envoys.

By the late 19th century, positivists were dominating international jurisprudence, largely because they avoided the problem, characteristic of natural-law theorists, of confusing international morality with international law and because they based their theories on the actual practice of states.

The position of diplomats and the public respect they enjoyed declined substantially in the 20th century. This development, combined with certain other factors—including the explosive growth in the number of new states after World War II.

An increase in the size of diplomatic missions, and the increasing prevalence in international law of the view known as functionalism (according to which diplomatic privileges should be limited to those that are necessary to enable a diplomat to accomplish his mission)—led eventually to attempts to restrict diplomatic immunities in international treaties.

The Vienna Convention on Diplomatic Relations (1961) restricted the privileges granted to diplomats, their families, and staff. Avoiding controversial issues such as diplomatic asylum and focusing on permanent envoys rather than on ad hoc representatives or other internationally protected persons, the convention accorded immunity from criminal prosecution and from some civil jurisdiction to diplomats and their families and lesser levels of protection to staff members, who generally were given immunity only for acts committed in the course of their official duties.

Since the 19th c diplomatic privileges and immunities have gradually been extended to the representatives and personnel of international organizations.

Despite this in the 20th century, the Iran hostage crisis is universally considered a violation of diplomatic immunity. Although the hostage takers did not officially represent the state, host countries are obligated to protect diplomatic property and personnel– by the seizure of the U.S. embassy in Tehrān, supporters of the Islamic revolution in that country held more than 50 American diplomatic personnel as hostages for 444 days.

On the other hand, during World War II, diplomatic immunity was upheld and the embassies of the belligerents were evacuated through neutral countries.

Should diplomats be afforded such unusual treatment? This question has been asked and answered over the centuries. Diplomats, everyone has come to agree, are meant to be emissaries of peace. -either bringing or maintaining  peace between two nations.

As such, diplomats who carry out this special , important job are afforded special  protection. (Remember,  theoretically. ) While modern diplomats are brokers of peace, diplomacy is often part of a last-ditch attempt to avoid war between the diplomat’s country and the host country . If  negotiations break down and war not averted, diplomats require safe passage out of the host nation before hostilities begin.

Not only does personal inviolability call for the host nation to refrain from killing or detaining an emissary , it also became a call for host states to protect visiting diplomats from harm from others, including their own people.

This ancient custom is still observed today in the form of the NYPD providing escorts to dignitaries visiting the U.N. etc.

The second principle creates modern diplomatic immunity is a bit of legal fiction called extraterritoriality.

Legal fictions are concepts that exist in flagrant contradiction to reality but are observed as real for the purposes of expediting legal matters.

Corporations are viewed under the law as people, and this is a legal fiction. 

Extraterritoriality falls under this umbrella by extending a nation’s sovereign soil into the host nation’s borders. Embassies and the homes, offices and cars of people with diplomatic immunity are considered to be situated on the soil of the home country. This means that the local police have as little right to invade a diplomat’s car or house as they would if the car or house were actually on the home country’s soil. For the purpose of the law, they are.

In theory, a person with diplomatic immunity is still under the jurisdiction of their home land’s laws and in some cases, emissaries who have broken the law in a host country are tried in their home countries for the crime.

In practice, though, people with diplomatic immunity exist in a lawless state. Technically they can be arrested and detained for a crime, but under diplomatic immunity the courts of the host county have no jurisdiction to prosecute them and so charges would inevitably be dropped.

(This still today includes the accrual of debts, just as with the 18^th-c Russian diplomat in England ,diplomats often have trouble establishing lines of credit in host countries because lenders would have no way to collect on any default.)

As a result, there is an international calculus that nations carry out to arrive at what will be done with a person with diplomatic immunity who commits a crime. If the crime is negligible enough, the host country generally looks the other way.

As a result, in July 2011 the city of New York was owed $16.7 million in unpaid traffic and parking tickets by people with diplomatic immunity.

Remarkably, most people with diplomatic immunity tend to observe the laws of the host country, as is required of them by the UN Geneva Convention on Diplomatic Immunity of 1961, which codified the longstanding customs surrounding the concept.

When a diplomat violates a law that is serious enough to warrant the host country’s attention, those situations themselves often call for some diplomacy.

Under the rules of diplomatic immunity, a host country can declare a visiting emissary persona non grata (an unwelcome person) and demand the emissary be recalled.

When defense contractor Raymond Davis killed two would-be assassins in Lahore, Pakistan in 2011 he created an international incident that strained the limits of the already shaky diplomacy between the U.S. and Pakistan.

Though not technically a diplomat, Davis had entered Pakistan on a diplomatic passport which, under international law, meant that Pakistan admitted him to their country with diplomatic immunity.

In the aftermath of the shooting, American diplomats brokered a deal to maintain relations between the two countries. Davis was removed from Pakistan, as would have been customary and necessary, but Pakistan also secured the removal of other diplomats it suspected were engaged in spying and other intelligence and defense activities in the nation’s borders. Pakistan handed over a list of 331 Americans working in Pakistan with diplomatic immunity who they wanted recalled to the U.S.

The host country need not give a reason for declaring an individual persona non grata and, although it’s a big deal when they do, some host countries use the tactic as a means of expelling diplomats who are publicly critical of the ruling regime.

In cases where it’s deemed politically wise, a diplomat’s home country can also waive an emissary’s diplomatic immunity; this would make the emissary subject to the jurisdiction of the host country and would put them in fairly hot water, their home country having turned their back on them and their host nation likely to retaliate. An emissary cannot waive their own immunity, however.

The UN created the 1961 convention on diplomatic immunity set into international law customs and traditions that stretched back millennia but it did so in the context of a world that was very changed from the one which necessarily gave rise to the original customs and traditions, created in a time before the leadership of a nation was itself subject to prosecution. As governments and government officials are now liable to lawsuits, the need to protect diplomats from their once-unquestioned actions has fallen away.

Yet while world governments have modernized, the protections for diplomats remain the same and have been expanded. After the First and Second World Wars, non-state actors and international organizations that have no borders, became increasingly powerful and things like trade and aid were also granted diplomatic immunity.

Over decades, this led to something of a run on diplomatic immunity – blanket statuses of inviolability and exterritoriality being granted to members of groups like the Inter-American Tropical Tuna Commission –under the UN convention, this includes the immediate family members and domestic staff of the commission, as well.

Some in the diplomatic community have called for exercise of a third principle, functional necessity, which dictates the aspects of diplomatic immunity granted to an emissary only go so far as their diplomatic mission requires.

Yet although the U.N. has the power to push for changes that limit the scope of diplomatic immunity, it too is as entrenched in the current model as anyone else: 2010, the U.N. cited diplomatic immunity to protect itself following a cholera outbreak that killed 8,000 Haitians when a group of Nepalese soldiers who hadn’t been tested for the disease were deployed to the country to provide aid following the massive earthquake there. Showing  why, functional necessity is part of the framework of the 1961 Vienna Convention on Diplomatic Immunity,  but it is the least likely to be followed.

This chart outlines the immunity afforded to foreign diplomatic personnel residing in the United States.

[To use this chart, please use the pdf version.]