I write, speak, and testify periodically about the reciprocal importance for the United States and U.S. officials of various forms of immunity under international law: head of state immunity, foreign sovereign immunity, official acts immunity, and diplomatic immunity. Here is the text of a short op-ed I have in today's New York Times "Room for Debate" section entitled "It's Vital for Americans Abroad" arguing why it would be dangerous for American diplomats to create exceptions to diplomatic immunity in order to allow foreign diplomats to be prosecuted or sued in the United States. When considering possible exceptions to immunities for foreign governments and foreign officials, we must also consider the reciprocal consequences.
The Vienna Convention on Diplomatic Relations, a treaty to which almost every country in the world is a party, provides that diplomats enjoy immunity from arrest, criminal prosecution and civil lawsuits in the countries where they are posted. Diplomatic immunity is vital to protect the more than 15,000 American diplomats serving in over 150 countries from political and legal harassment. If American diplomats did not have immunity, they would be at constant risk of detention and prosecution on trumped-up charges, especially in countries where the United States is unpopular or where the government bows to popular pressure.
Foreign diplomats and certain representatives of international organizations serving in the U.S. also enjoy immunity. Unfortunately, this means that if they commit crimes like driving while drunk or abusing household workers, they have immunity from prosecution or lawsuits in U.S. courts. But the federal government is not totally without recourse. For serious crimes, the State Department may press the foreign government to waive immunity, and in some cases the foreign government may be willing to do so. If the foreign government refuses, then the State Department may ask the government to recall the diplomat, or may expel the diplomat from the U.S.
In recent years, the U.S. government has become increasingly concerned by the abuse of domestic workers by foreign diplomats. In December 2008, President George W. Bush signed legislation requiring diplomats to sign contracts specifying the employment conditions for domestic workers and the State Department to suspend the issuance of special visas for domestic workers for any country that had tolerated such abuse.
The U.S. government must not ignore abuse of domestic workers or other offenses committed by foreign diplomats in the U.S. but it would be a mistake to create exceptions to diplomatic immunity. This would greatly endanger U.S. diplomats who serve around the world.