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How Does Diplomatic Immunity Work?

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Join Josh as he explains the intricacies of diplomatic immunity, a tradition dating back at least 4,000 years.

Listen to the Stuff You Should Know podcast:
http://www.stuffyoushouldknow.com/podcasts/deal-diplomatic-immunity/

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Ever since there's been more than one civilization, there's probably been some form of diplomatic immunity. As far back as 2000 BCE, the very famous Babylonian ruler (and eye-for-an-eye type lawgiver) King Hammurabi was criticized - I guess on a tablet or something - for not providing safe transport for a couple of emissaries through his kingdom when they left, after they delivered some bad news to him.

Not very cool, Hammurabi. That means that as far back as 4000 years ago, the idea behind diplomatic immunity was already a custom.

So, what King Hammurabi failed to observe was a tenet of diplomatic immunity called personal inviolability. And it basically says: don't kill the messenger. No diplomat or anybody on a diplomatic mission should be injured, killed, harmed, detained, or kept from their business in any way, shape, or form.

In fact, it's so ingrained in international relations - and has been for so long - that even when some parties have failed to observe it, other parties have decided not to retaliate. Very famously, Darius I, King of Persia, did not kill a couple of Spartan emissaries that he had hanging out at his court when the Spartans kicked his emissaries into a bottomless pit. Yes, that movie was actually fairly accurate.

In addition to personal inviolability, there's another column - another pillar - of diplomatic immunity. And this one's a little more recent. It's dated from about the Renaissance. And it's a little bit of legal fiction called extraterritoriality. It's a mouthful. Believe me, I just said it. Extraterritoriality basically says that the sovereign soil of a nation extends into a host nation as far as the embassy goes. So that means that the embassy itself, the diplomatic vehicles, the houses of the diplomats, their offices... all of these are considered to be on the sovereign soil of the nation they belong to even though they're in another country.

That means that the law enforcement, or the cops, or whoever, of the host country has no more jurisdiction over these houses or cars or offices than they would, than if those places were actually in the other country themselves.

Now, it's not all fun and games. Under the United Nations' 1961 convention on diplomatic immunity, someone with diplomatic immunity can be arrested in the host country, but they can't actually be charged with a crime. Theoretically, though. they're still operating under their own country's laws. So, if they broke the law, they should be extradited back to their country to stand trial for the crime they committed in the other country. This doesn't always happen. It does sometimes, if the crime is heinous enough. But, for the most part, everybody just looks the other way.

Diplomats do still have to watch their step, though. Because their home country can waive diplomatic immunity on them, and the host country can go ahead and prosecute. Plus, if things are bad enough, the host country can declare the diplomat "persona non grata," which means that person is no longer welcome in the country and they've got a very limited amount of time to skedaddle back home.

For the most part, though, people with diplomatic immunity exist in a weird kind of lawlessness. As a result, we've seen recent allegations of things like human trafficking, where a diplomat brings somebody from their home country to work in the host country in their home (again remember: sovereign soil), and they basically keep them there under slave labor conditions.

But hey, diplomatic immunity!

We also saw it in 2010 in Haiti, when the United Nations cited diplomatic immunity to protect some of its peacekeepers who were alleged to have started a cholera outbreak that killed as many as 8000 people.

And closer to home, in New York City, the unpaid parking tickets in 2011 alone of people with diplomatic immunity totaled 16.7 million dollars.

So, because of the rather attractive protections that diplomatic immunity affords one, there's been a run on diplomatic immunity since World War II. Everybody from your little brother to the Inter-American Tropical Tuna Commission has diplomatic immunity these days.

This has led to calls on tightening up who exactly gets diplomatic immunity, and just how far it extends. A lot of people suggest that we use something called functional immunity, which is kind of like diplomatic immunity-lite. The idea behind functional immunity is, yes, as a diplomat you need to be protected from legal harassment during the course of your work, but you should still pay your parking ticket, y'know?

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