Research studies

The abuse of Diplomatic Immunity 


Prepare :Tamer Abd Elhamid Mohamed Mortada
 Democratic Arab Center


Foreign Service employees and family members serving abroad need tounderstand the scope and limitations of the privileges and immunitiesthat flow from their diplomatic or consular status, and the obligationsand liabilities that their status imposes upon them.

Provisions of diplomatic immunity ensure that diplomatic officials and members of their immediate family cannot be detained or arrested, prosecuted, subpoenaed or have their residences searched . The disadvantages of diplomatic immunity are derived from the very principles that make immunity an advantage to foreign delegates in a host nation and a disadvantage to others. When diplomats orgovernment officials abuse their authority and misuse their diplomatic immunity, it becomes acontentious issue. Diplomatic immunity can be abused, such that diplomats often get away with crimes that ordinary citizens would have to face harsh consequences for. However some forms of diplomatic immunity are extremely important. For example, one needs to make sure foreign diplomats do not getarrested for political reasons. It is imperative to note that there are powerful reasons for diplomatic immunity, but these reasons should be balanced against the need to prevent diplomatic crimes andprotect the right of the victims. This topic focuses on striking a balance between Diplomatic Immunity andInternational Human Rights and aims to arrive at a resolution that decides a hierarchal order in situations where the two conflict.[1]

Diplomatic Immunity:

Diplomatic Immunity is a concept that has evolved from the ancient times when the Romans awarded a “special status” to their envoys. In the period post World War II this customary law was codified into a multilateral agreement by means of the Vienna Conventions on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations, which regulate diplomatic privileges and immunities .[2] The Vienna Convention is explicit that without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. Nonetheless, there have been incidents where diplomats have not only violated the law of the host country but also violated the human rights of other citizens and yet, got away without any significant punishment. As Mark P. Lagan rightly said, Diplomatic Immunity must not become diplomatic impunity.[3]

Diplomatic immunity is a principle of international law by which certain foreign government officials are not subject to the jurisdiction of local courts and other authorities for both their official and, to a largeextent, their personal activities, only during their term as diplomats. It isimportant to note that, mostcountries award different levels of immunity to people working at different levels. The immunity providedby the Vienna Conventions fall under four categories: personal inviolability “freedom from search andseizure”, criminal immunity “exemption from detention and arrest or prosecution for criminal violations ofhost country law”, civil immunity “exemption from being sued”, and immunity from being required totestify in a criminal or civil proceeding.

Reasons for the presence of diplomatic immunity:

Diplomatic Immunity emerged in the Vienna Conventions in 1961 as a codification of a practice that had been carried out since ancient times. Anumber of reasons can be accredited to the presence ofdiplomatic immunity, if these are looked at from a theoretical perspective, they could be categorized asfollows:

  • Representational Theory:

According to the representational theory, the diplomat is considered a representative of thesovereign and is provided the same privileges as would be provided to the sovereign. Any insultto the diplomat is counted as an insult to the sovereign itself. [4]

  • Exterritorial Theory:

     This theory, one of the oldest theories, is based on the fictional premise that irrespective of the diplomat’s physical presence in the host country, he should be considered present on the land ofhis host country. This theory has been widely abandoned in the present times due to its fictionalbasis which could lead to diplomats enjoying extended privileges.

  • Theory of Functional Necessity:

This theory is, presently, the most widely accepted one. According to it, without the presence ofdiplomatic immunity, diplomats would be dependent on the good will of the host country toperform their functions; in order for diplomats to carry out their functions, they require immunity.

In the mid -1970s, more worrying problems developed. It became clear that certain diplomatic missions were holding firearms, contrary to the provisions of local law. Further, it seemed that these firearms were often being imported through the diplomatic bag.  In recent years in various Western countries, there have also been terrorist incidents, in which it was believed that the weapons used were provided from diplomatic sources. It was widely thought that certain foreign governments were promoting state terrorism against dissident exiles, through the involvement of their embassies in the country concerned. Normal diplomatic communication with the Libyan Embassy in London was complicated by the fact that “as in other Western capitals” so-called revolutionary committees had taken over the embassy, renamed the embassy the Libyan People’s Bureau and refused to designate a person in charge of the mission. The bizarre events of this period, and the response of the United Kingdom Government to them, are beyond the scope of these editorial comments. [FN10] In February 1980, further internal upheavals occurred in the Libyan People’s Bureau in London, giving rise to further diplomatic problems.[5]

Abuse of Diplomatic Immunity:

The abuse of diplomatic immunity on several occasions and its leading to the violation of thehuman rights of other ordinary citizens have led to serious questions being posed on the requirement of diplomatic immunity. Under Article 32 of the Vienna Conventions it is stated that a diplomat can fallunder the criminal jurisdiction of the host country only if a waiver to immunity is approved by his homecountry. Article 29 states that a diplomat cannot be arrested or detained under any condition. These articlesmake it difficult for there to be any decisive action taken against diplomats even when they violate the immunity provided to them. Abuses committed by diplomats can be of a civil or a criminalnature.

Criminal Abuses:

Criminal abuses of diplomatic immunity include cases in which the diplomat has committed acrime of criminal nature. This most commonly, includes cases of illicit trafficking of drugs,kidnapping and killing of ordinary citizens “for reasons ranging from personal hatred to accidentsdue to alcoholic influence”. In a case where a diplomat commits a criminal abuse, the hostcountry “under the Vienna Convention on Diplomatic Immunity” can, at most, break diplomaticrelations with the home country of the diplomat. This solution is deemed rather irrationalespecially when the crime committed by the diplomat is of a personal nature. In cases of terroristattacks, large scale drug peddling where the government of the home country may be involved,this solution is thought to be too mild. Some examples of criminal abuses have been stated inthe Timeline. It is important to note that a diplomat can fall under the criminal jurisdiction of thehost country if the home country grants an immunity waiver. [6]

  • Civil Abuses:

Diplomatic immunity protects diplomats from having to take any liability for their actions and fromappearance and processions in court in the case of a civil abuse.

  • Human Rights Violations vs. Diplomatic Immunity:

As explained in the section above, conflicts between human rights and diplomatic immunity areoften noticed, in which case it is necessary to choose between the two. This section examines twopossible ways in which a hierarchy can be established. “Delegates are, however, advised to suggest alternatives to hierarchy, some of these are mentioned in possible solutions” .[7]

  • Hierarchy of Sources:

Diplomatic immunity is a multilateral agreement that may have been codified in 1961 but has been in existence since the Ancient Greeks and Romans. Human Rights, on the other hand, onlycame to prominence at the beginning of this century, before which it was solely associated withslavery and warfare law. Thus, it can be concluded that in terms of the history of InternationalLaw, Human Rights is a relatively new concept as compared to diplomatic immunity. However,this cannot be used to decide an order of priority between the two. Moreover, this method ofprioritization is used when two conflicting laws fall under the same domain. In this case, the lawsin question are rather distinct and conflicts are only seen at specific occasions.

  • Normative Hierarchy:

When normative hierarchy is considered as a method for prioritizing between the two, it becomesnecessary to determine which of the two, if any, can be considered as jus conges. Diplomaticimmunity is usually not considered as jus conges not only because it is based quite largely onfunctionality, but also because it is derived from reciprocity. Human Rights, however, have beenconsidered as an example of jus conges. The main issue is that there is an argument as towhether all the human rights can be considered as an example of the same. If yes, then it is easy to place human rights hierarchically above diplomatic immunity. But if not, the specific right has tobe judged as per the case and if it does not qualify as jus cogens then this basis of prioritizationbecomes inapplicable.[8]

  • The Reciprocity Factor:

Delegates would need to consider that even if the declaration of human rights can theoreticallybe established as hierarchically above diplomatic immunity it is difficult to pass a resolution to the effect,as every state is a sending and receiving state in the bargain. By the theory of functional necessity, itcan be understood that diplomatic immunity is a necessity for stable diplomatic relations between states.

some important general points emerged. It became clear that diplomatic law is not only about the balancing of legitimate interests between the sending state and the receiving state. There is another factor often at play: the presence abroad, in the territory of the sending state, of an expatriate community of the receiving state. “There were, for example, some 8,000 Britons resident in Libya in April 1984 “. The extent to which countries will avail themselves of the opportunities for lawful response to abuse of diplomatic immunities will depend in large measure upon whether that expatriate community is perceived to be at risk. That is something that the balanced text of the Vienna Convention cannot provide againstand by the same token, any amendment of that text or withdrawal from its obligations would not change that reality.

As has been briefly explained above, the Libyan Bureau incident in April 1984 concerned the inviolability of the embassy, the protection of the diplomatic bag from being opened or detained, and the personal immunity of the diplomats in the Bureau.[9]

Previous Attempts to solve the Issue :

Very few efforts have been taken towards regulating diplomatic immunity across the globe. Themajor reason for this is the fear of reciprocity. In other words every state is both a sending as well as areceiving state hence nations are skeptical about giving fundamental human rights a higher precedencethan diplomatic immunity. Today the only option that the government of a state has when a crime has been committed by a foreign diplomat within its territory is to request the sending nation to revoke theimmunity of the diplomat or to deport the diplomat back to the sending nation. In case the crimecommitted is of very grave nature then diplomatic relations with the sending nation can be broken.

Consolidated global action is one such way in which this abuse of immunity can easily be curtailed but no substantial efforts have been taken in this direction. The United Nation or other such multinationalforums need to come out with an effective means to regulate the same. Since no major global action hasbeen taken yet it is up to you the delegates of this committee to come up with an effective resolution tosolve this problem.[10]


Firstly delegates need to remember that solutions suggested by them should not be based on aspecific incident, but rather, address the problem as a whole with a focus on resolving the conflictbetween diplomatic immunity and human rights. The following solutions could be considered as a basisfor resolutions, but please feel free to come up with innovative suggestions that may differ from the onesstated below.

  • Evaluation of acts under the Theory of Functional Necessity:

Offenses committed by diplomats should be evaluated in terms of the theory of functional necessity. Thehost country should try and determine as to whether the action in question was performed as a part ofdiplomatic duty. In many cases, for instance a diplomat beating up his own child- there is no possiblejustification for the action being a part of his diplomatic mission. This would mean narrowing downdiplomatic immunity and limiting it by the evaluation of the offense. Host countries may face a problem ifthe offense is arguably, under a diplomat’s duty or falls under the pretext of self-defiance.

  • Universality of Human Rights:

By the declaration of human rights, these rights are universal and violations of these rights arepunishable offenses “depending on the domestic law of the state”. The argument of the universality ofhuman rights is that no citizen should be immune from retribution when he or she violates a right which is arguably but majorly, accepted as jus cogens. This solution would need to be combined with that offunctional necessity, as stated above, to make it practically possible; without which, it would ignore thereciprocity factor.[11]


This proposed conceptof justifiable reactions to grave abuses, of diplomatic privileges and immunities endorses the view: that the receivingState mayinvoke neither implied exceptions to the inviolability of diplomaticpremisesordiplomaticbagsnorthedefenseof and quote,material breach and quote,or resort to reprisals directed against the mission. It admits, however, coercivecountermeasurescoveredby necessity yourself – defense,while. Stateprotectionofhumanlife doesnotseemtoprovide. anautonomousground ofjustification.

It is ofcourseconceivabletoreachafairbalancebetweentheinterestsofthesendingandthereceivingStateswithoutrelyingupontherightofself-defense,e.g. : byassumingcertainimpliedlimitationsontheprivilegesof inviolability -under the ViennaConventionor byfully admittingtheresort to reprisals. SuchapproachespresentnolessambiguityoruncertaintythantheproposedviewandaremoredifficulttorecouncilwiththedraftinghistoryandthewordingoftheViennaConvention.

The receiving State mayclaim self-defenseonlyincaseswheneventheproponents ofarathernarrowviewconsidercoercivecountermeasurestobelegitimate,albeitpossiblyinbreachoftheViennaConvention 1992.TotheextentthatStatesaredriventoopt between either their ownvital interests orthe protectionof humanlives andtherigid observance ofdiplomatic privileges, public international lawlendsitselfto erosion. Conversely, by providingthereceivingStates withadequateremedies in extremeemergencies,international lawstrengthens itsownauthority.[12]

References ;

1- Chapter 21:Privileges andImmunities , FSI Transition Center Overseas Briefing Center :

2- HerdegenMatthias , TheAbuse of  Diplomatic Privilegesand Countermeasures not Covered by the Vienna Convention on Diplomatic Relations ,

3- Higgins Rosalyn ,The Abuse of  Diplomatic Privileges and Immunities: Recent United Kingdom Experience , American Journal of International Law , 79 AMJIL 641 , July, 1985

4- Abuse of Diplomatic Immunity in Family Courts:  There’s Nothing Diplomatic About Domestic Immunity ,

5- Appalwar  Maithili , Preventing the abuse of Diplomatic Immunity , The Hague International Model United Nations . 27 Janurary , 2013 .

[1]Chapter 21:Privileges and Immunities , FSI Transition Center Overseas Briefing Center :

[2]Higgins Rosalyn , The Abuse of  Diplomatic Privileges and Immunities: Recent United Kingdom Experience , American Journal of International Law , 79 AMJIL 641 , July, 1985

[3]– Abuse of Diplomatic Immunity in Family Courts:  There’s Nothing Diplomatic About Domestic Immunity ,

[4]Appalwar  Maithili, Preventing the abuse of Diplomatic Immunity , The Hague International Model United Nations . 27 Janurary , 2013 .

[5]Herdegen Matthias , The Abuse of  Diplomatic Privileges and Countermeasures not Covered by the Vienna Convention on Diplomatic Relations ,

[6]Abuse of Diplomatic Immunity in Family Courts:  There’s Nothing Diplomatic About Domestic Immunity

[7]Appalwar  Maithili , Preventing the abuse of Diplomatic Immunity , The Hague International Model United Nations . 27 Janurary , 2013 .

[8]Chapter 21:Privileges and Immunities , FSI Transition Center Overseas Briefing Center :

[9]Appalwar  Maithili , Preventing the abuse of Diplomatic Immunity , The Hague International Model United Nations . 27 Janurary , 2013 .

[10]Higgins Rosalyn , The Abuse of  Diplomatic Privileges and Immunities: Recent United Kingdom Experience , American Journal of International Law , 79 AMJIL 641 , July, 1985

[11]Appalwar  Maithili , Preventing the abuse of Diplomatic Immunity , The Hague International Model United Nations . 27 Janurary , 2013 .

[12]Herdegen Matthias , The Abuse of  Diplomatic Privileges and Countermeasures not Covered by the Vienna Convention on Diplomatic Relations :

5/5 - (1 صوت واحد)

المركز الديمقراطى العربى

المركز الديمقراطي العربي مؤسسة مستقلة تعمل فى اطار البحث العلمى والتحليلى فى القضايا الاستراتيجية والسياسية والاقتصادية، ويهدف بشكل اساسى الى دراسة القضايا العربية وانماط التفاعل بين الدول العربية حكومات وشعوبا ومنظمات غير حكومية.

مقالات ذات صلة

اترك تعليقاً

لن يتم نشر عنوان بريدك الإلكتروني. الحقول الإلزامية مشار إليها بـ *

زر الذهاب إلى الأعلى