Why is diplomatic immunity even a thing? Why was this particular job decided to be above the law?
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it’s not really above the law. it’s been agreed to in international conventions. The idea behind it is that being able to send people to foreign countries without the risk of imprisonment or death is beneficial to maintaining diplomatic relations. So that’s what we do.
We want diplomats to be able to do their job, even in situations where the hosting nation is undergoing civil strife or is hostile. Diplomatic immunity is a courtesy extended by the host in order to ensure that. It allows diplomats to come and go, and not be held hostage by trumped up charges. That could lead to a spiral of tit-for-tats that can easily escalate into a crisis. And on a more prosaic note, it helps keep friction to a minimum when diplomats may not be fully aware of all the legalities of the host nation, like accidentally jaywalking or something.
Note that this doesn’t mean you can get away with anything. It is customary and expected for the diplomat’s home country to waive immunity in the case of egregious criminality. Since diplomatic immunity is bilateral – “I’ll give your guys immunity of you give my guys it too” – failure to play nice can often cause a diplomatic spat.
Because mistreating emissaries has an extremely long history of causing conflicts and ongoing escalating reprisals. Have you ever heard about the Mongol Empire. They are a great case study in what happens when emissaries are mistreated.
Diplomats aren’t above all the laws. If a diplomat robbed a liquor store at gunpoint, the cops are going to come in guns blazing. What they’re NOT going to do is toss them into the local jail — instead, they’re going to exile them.
Why? This is a literal case of “don’t shoot the messenger.” A lot of diplomats represent countries that are unpopular with their host nation’s local population. But if the host takes out their frustrations on the diplomat, well, now you can’t communicate with that country nearly as effectively anymore. Maybe in a place with really honest cops and courts, this isn’t a problem, but in a lot of the world, there’s a real fear of false arrest. So Diplomatic Immunity is a simple way to keep the diplomat safe.
Yes, it’s abused. But repeated abuse makes the diplomat’s whole country look terrible, which is precisely the opposite of what a diplomat is paid to do. So the abuses stay rare enough to make the rule worth keeping.
It’s to prevent diplomatic incidents and/or bullshit where the hosting country rounds up/arrests/harasses diplomats. The idea is that no matter how bad relations between two countries get the diplomats will be safe and should relationships sour to the point of total diplomatic breakdown the diplomats will be sent home, rather than imprisoned.
**Most** of the time countries try to make sure their diplomats are well behaved and avoid incidents, nobody wants that.
For international relationships to work, the countries need to be able to give a lot of latitude to make binding agreements to their diplomats. As countries typically have a very large amount of latitude for defining and prosecuting crimes for anybody in their territory, its very easy to see how that can lead to a diplomat agreeing to some deal then claiming they only agreed because they were threatened with prosecution. Such claims would make diplomatic agreements much harder to come by.
Basically, diplomatic immunity exists so that a country can send a diplomat over and that diplomat knows they will be able to negotiate freely without facing any persecution in the host country, even if said host country does not like the terms offered, and even if the two countries are actively hostile. The later is vital for allowing peace to be negotiated during a war: who would willingly walk into the enemy’s custody without some guarantee they can return?
That said, diplomatic immunity has both degrees and is not absolute. Any conditions and limitations will be agreed upon prior to the diplomat being accepted into the host country. If such terms cannot be agreed upon, the diplomat will be required to return to their home country, which will need to send a different diplomat to repeat the process.
Not all diplomats get the same degree of protection: a top level diplomat working with the host’s department of state might have full immunity, while a lower level diplomat working with private citizens at consulates may be granted only minimal immunity. Its not uncommon for diplomats to be able to be fined, but not jailed, for example. Often, for higher level diplomats, the immunity will be extended to their family and staff. Lower level diplomats will have less such expansion. This expansion is for the same reason: a diplomat is likely to negotiate differently if their family is threatened.
In terms of absoluteness, while the host country cannot revoke the credentials other than expelling the diplomat, the home country can fully revoke the immunity. This means, a diplomat can be charged with a crime, if the home country can be convinced they committed it. For many crimes, this process is not worth the time and energy of either country, but for serious crimes, the host country may pursue the process.
Some diplomats will also only have immunity for specific types of actions, typically actions directly related to their job. A consulate worker may have immunity should they harbor a wanted criminal that requested asylum, but not against a theft charge.
The concept is to protect diplomats from being basically blackmailed, taken hostage or used as pawns.
Imagine you are a US diplomat to say, Russia. If diplomatic immunity didn’t exist, the minute relations turned sour (like say a war in Ukraine), you may get pulled over for speeding or whatever made up reason and they could plant drugs in your car, or accuse you of a made up crime, etc.
The end goal would be to basically take you as a hostage and use you as a pawn for political purposes.
In ancient times, diplomats were more so traveling messengers. Diplomatic immunity was to protect them from being killed or assaulted just because the ruler didn’t like the message they had to deliver.
Generally it’s a gesture of good faith between nations. Without it there’s always the implicit threat that another nation will arreat their diplomat on trumped up charges for political leverage. Our congresspeople and president have similar immunities essentially to prevent another politician from arresting all their opposition and voting on things uncontested. You might remember a few fascist governments which rose to power in ways like this from history classes, and we aren’t keen on repeating those mistakes (and actually this was one area where our founding fathers had some extremely effective forethought).
Sure it causes tensions every so often when a diplomat does something embarassing, but it helps mitigate one of the easy paths to war, so it’s a bit of a calculated risk.
It should be noted that this kind of immunity is also useful because diplomats don’t always know every local law, and may ocassionally break some on accident. Sure we brief them pretry well, but accidents happen, and a diplomat being able to get to a place unobstructed can also be the difference between war and peace between two nations. You wouldn’t want a speeding ticket to make a diplomat late to nuclear talks afterall.
International lawyer here.
Diplomatic immunity is regulated by law. Not s particular country’s law, but a law common to all nations. The Vienna Convention on Diplomatic Relstions is ratified by 192 countries and even those who have not signed it, are bound to most provisions (including diplomatic immunity) as a matter of customary international law.
Diplomatic immunity is indeed absolute, meaning a diplomat cannot be charged, prosecuted, detained or sesrched by the host country authorities. This is also true for diplomatic premises, staff, their homes and family members. In fact, it is even debatable whether in cases of extreme emergency such as a fire in the embassy the host country is allowed to intervene in any way without the consent of the ambassador. Firemen could potentially be barred from entering the premises during an ongoing fire!
This might not make sense at first, but you need to remember that not all countries have systems with checks and balances to guarantee that the law will not be used politically against perceived enemies. Diplomatic immunity is what keeps Western diplomats in North Korea… alive. This is a consensus that all countries could only arrive on an all-or-nothing basis. It is better to have absolute immunity than too allow some countries to explore loopholes and persecute foreign delegations.
That said, this doesn’t mean diplomats are above the law. They are still accountable to their home countries and international law in general. Also, their individual status as diplomats has to be accepted by the host country and can be revoked at any time by declaring them persona non grata, in which case they will be granted a period to return to their home country and possibly be prosecuted there. Likewise, diplomats are not immune to the jurisdiction of international courts, and if accused of crimes against humanity or war crimes they can also be sent to [Scheveningen.](https://en.m.wikipedia.org/wiki/Hague_Penitentiary_Institution)
A perfect example is that laws in some countries are different then in others, so we don’t necessarily expect a foreign diplomat to abide by stringent decency laws (i.e. wife must wear a hijab in Islamic countries) when actively working in said country. It has become much more than this, but I believe it is where it starts from.
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