Diplomatic and Consular Immunity

Foreign Service personnel assigned to U.S. embassies and consulates should consult with appropriate officials of the Department of State regarding authoritative information on diplomatic and consular immunities.  The overview presented below is intended as a basic, layperson’s introduction to the subject.

The purpose of diplomatic and consular immunity is to promote effectiveness of official relations.  Both types of immunities extend essential protections to diplomats, consuls, their families and their staffs by limiting the ability of host countries to detain, subpoena, arrest or prosecute them.  Limits on taxation and social service provisions also exist.   These privileges and limits help ensure the efficient performance of U.S. diplomatic personnel stationed abroad.  For information regarding U.S. treatment of foreign diplomats assigned to the United States, see http://www.state.gov/m/ds/immunities/c9118.htm

Levels of protection vary according to an employee’s role as a diplomatic agent, an administrative and support employee or a consular officer.  Recognized family members generally have the same level of immunity as employees, but not in all circumstances. Foreign Service personnel traveling temporarily to a country are normally not covered.  The immunities themselves fall into four categories: personal inviolability (freedom from search and seizure), criminal immunity (may not be detained or arrested, or prosecuted for criminal violations of host country law), civil immunity (may not be sued) and immunity from being required to testify in a criminal or civil proceeding.

Diplomatic Immunity

Diplomatic Immunity privileges extend directly from the 1961 Vienna Convention on Diplomatic Relations, or VCDR. The Convention deals with exemptions from criminal as well as civil laws of a host nation in most circumstances.   Generally, embassy territory and communications, as well as a diplomatic agent’s person and personal property, are considered inviolable under the Convention.  Article 31 of the Convention exempts diplomatic agents from the civil and criminal jurisdictions of host states, except for cases in which a diplomatic agent (1) is involved in a dispute over personal real property, (2) has an action involving private estate matters or (3) is in a dispute arising from commercial or professional business outside the scope of official functions. 

These exemptions dictate the terms under which an American diplomat may be subject to criminal or civil penalty.  Also, Article 31 clearly states that while diplomatic immunity privileges may exist in a host state, these privileges do not exempt the diplomatic agent from the jurisdiction of the laws of the United States.  These privileges are not absolute either.  For example, Article 32 provides that the sending state may waive all diplomatic immunity privileges enjoyed by the diplomatic agent. 

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CONSULAR IMMUNITY

Consular immunity privileges are described in the Vienna Convention on Consular Relations of 1963 (VCCR). Consular immunity offers protections similar to diplomatic immunity, but these protections are not as extensive, given the functional differences between consular and diplomatic officers.  For example, consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction (they may be tried for certain local crimes upon action by a local court) and are immune from local jurisdiction only in cases directly relating to consular functions.

The following information, drawn from a State Department chart outlining immunities afforded to foreign diplomatic personnel residing in the United States, highlights the basic differences between consular and diplomatic immunities.

CategoryMay be arrested or detainedResidence may be entered subject to ordinary proceduresMay be issued traffic citationMay be subpoenaed as witnessMay be prosecutedRecognized family member
Diplomatic
Diplomatic Agent No 1 NoYesNoNoSame as sponsor (full immunity and inviolability)
Member of Administrative & Technical Staff No 1 NoYesNoNoSame as sponsor (full immunity and inviolability
Service StaffYesYesYesYesYes No immunity or inviolability 2
Consular
Career Consular Officers Yes, if for a felony & pursuant to a warrant 2 Yes 4 Yes No—for official acts. testimony may not be compelled in any case. No—for official acts; otherwise, yes 2 No immunity or inviolability 2
Honorary Consular OfficersYesYesYes No—for official acts. yes in all other cases No—for official acts; otherwise, yesNo immunity or inviolability
Consular Employees Yes 2 YesYes No—for official acts. yes in all other cases No—for official acts; otherwise, yes 2 No immunity or inviolability 2

1 Reasonable constraints, however, may be applied in emergency circumstances involving self-defense, public safety or the prevention of serious criminal acts.

2 This table presents general rules. Particularly in the cases indicated, the employees of certain foreign countries may enjoy higher levels of privileges and immunities on the basis of special bilateral agreements.

3A small number of senior officers of international organizations are entitled to be treated identically to diplomatic agents.  (Note: International Organizations are not treated on this summary chart.)

4 Note that consular residences are sometimes located within the official consular premises. In such cases, only the official office space is protected from police entry.

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Cautions

While the duties of a Foreign Service Officer (FSO) may be clearly defined by the State Department, his or her immunities and privileges should not be taken for granted.  Even when the Foreign Ministry of a country may be fully aware of this dimension of diplomatic practice, successfully claiming such immunities in the case of an accident or other emergency situation may well depend on the willingness of local officials to honor them. 

Moreover, depending on whether official duties or functions are involved, the Department of State may or may not come to the defense of U.S. Government employees faced with lawsuits. For example, Douglas Kent, U.S. consul general in Vladivostok, was involved in a car accident in October 1998 while driving home from his office.  After Kent left the post on reassignment, a Russian citizen injured in the accident sued Kent in his individual capacity in a district court in California.  According to an August 31, 2006, “AFSANET” message from the American Foreign Service Association (AFSA), “The Department of Justice with State Department concurrence refused to certify that Kent was acting within the scope of his employment when the accident occurred,” thus undermining his claim of immunity.  Ultimately, with AFSA supporting FSO Kent’s legal defense, the case went to the U.S. Court of Appeals for the 9th Circuit, which ruled in his favor by determining that he was acting within the scope of his employment when the accident took place. 

The Kent case clearly demonstrates that while Foreign Service personnel, especially those in senior positions, may consider themselves on duty 24 hours a day while stationed overseas and thus fully protected, particular circumstances may put those immunities at risk.  The case also points to the necessity for all employees who drive overseas to have fully adequate personal/automobile liability insurance coverage (which Mr. Kent did not have).

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