2 FAM 230
IMMUNITIES OF FOREIGN REPRESENTATIVES AND OFFICIALS OF INTERNATIONAL ORGANIZATIONS IN THE UNITED STATES
(CT:GEN-581; 09-26-2022)
(Office of Origin: L/DL)
2 FAM 231 GENERAL
2 FAM 231.1 Scope
(CT:GEN-435; 12-16-2014)
This subchapter sets forth Department of State policy and procedures regarding the immunities of foreign representatives in the United States, as well of officials of international organizations.
2 FAM 231.2 Responsibilities
(CT:GEN-563; 10-07-2020)
The Office of Foreign Missions (OFM) and the Office of the Chief of Protocol (S/CPR) administer this program, in consultation and coordination with other Department units as specified in the sections below.
2 FAM 231.3 Authorities
(CT:GEN-563; 10-07-2020)
a. Crime of Violence Defined, 18 U.S.C. 16.
b. Diplomatic Relations Act, 22 U.S.C. 254a et seq. (1978).
c. State Department Basic Authorities Act (1956), as amended by Public Law 105-277.
d. International Organizations Immunities Act, 22 U.S.C. 288 et seq.
e. Foreign Missions Act, 22 U.S.C. 4301 et seq.
f. U.S. Constitution, Article II, Section 3.
g Vienna Convention on Consular Relations, 21 U.S.T. 77, T.I.A.S. 6820.
h. Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227, T.I.A.S. 7502.
i. United Nations Headquarters Agreement, 17 U.S.T. 74, 20 U.S.T. 2810.
j. Convention on Privileges and Immunities of the United Nations, 21 U.S.T. 1418.
k. Agreement on Privileges and Immunities of the Organization of American States.
l. Organization of American States Headquarters Agreement.
2 FAM 232 IMMUNITY OF FOREIGN DIPLOMATIC AND CONSULAR PERSONNEL and of foreign representatives to and officials of international organizations
2 FAM 232.1 Embassy Personnel
2 FAM 232.1-1 Diplomatic Agents
(CT:GEN-435; 12-16-2014)
a. Diplomatic agents enjoy the highest degree of privileges and immunities. They enjoy complete personal inviolability. This means that: they may not be arrested or detained; they are owed a special measure of respect and protection; and neither their property nor residences may be entered or searched. Diplomatic agents also enjoy complete immunity from the criminal jurisdiction of the host State and thus cannot be prosecuted absent a waiver no matter how serious the offense. Diplomatic agents, with certain exceptions, also have immunity from civil suit. Finally, they enjoy complete immunity from any requirement to provide testimony or other evidence as witnesses, even when they themselves have been the victim of a crime.
b. Accredited family members forming part of the household of diplomatic agents (recognized by the Department of State as such) enjoy the same privileges and immunities as their sponsoring diplomatic agents.
c. Accredited family members working in the United States do not, however, enjoy immunity from civil and administrative jurisdiction for matters pertaining to their professional or commercial activities.
2 FAM 232.1-2 Members of Administrative and Technical Staff
(CT:GEN-435; 12-16-2014)
a. Members of the administrative and technical staff of a diplomatic mission perform tasks critical to support the operation of the mission. Accordingly, they enjoy immunities identical to those of diplomatic agents in respect of personal inviolability, immunity from criminal jurisdiction, and immunity from any requirement to provide evidence as witnesses. Their immunity from civil jurisdiction, however, is less extensive than that of diplomatic agents. Members of the administrative and technical staff enjoy immunity from civil jurisdiction only in connection with the performance of their official duties.
b. Like those of diplomatic agents, the recognized family members of administrative and technical staff enjoy the same inviolability and immunities from the host country's jurisdiction as their sponsors. They thus have complete immunity from criminal jurisdiction of the host State. However, since these family members perform no official duties, they enjoy no immunity from civil jurisdiction.
2 FAM 232.1-3 Members of Service Staff
(CT:GEN-435; 12-16-2014)
Members of the service staff of diplomatic missions perform domestic service (basic support tasks) to the mission and are therefore accorded more limited privileges and immunities than personnel in the other categories. Service staff members enjoy only official acts immunity (see further explanation below). They enjoy no personal inviolability or immunity from providing evidence as witnesses. The families of service staff members enjoy no privileges or immunities.
2 FAM 232.1-4 Nationals or Permanent Residents of the United States
(CT:GEN-435; 12-16-2014)
The general rules set forth above assume that diplomatic mission staff members are nationals only of the sending country or, rarely, of some third country. Traditionally, governments are unwilling to surrender any jurisdiction over their own nationals, and the modern treaty regime states precise rules on this point. The United States, as a matter of policy, does not normally accept the accreditation of its own nationals or lawful permanent residents as diplomatic agents. But, were it to do so, such diplomatic agents would enjoy inviolability and jurisdictional immunity only in connection with the performance of official acts. In any event, family members of diplomatic agents who are U.S. nationals enjoy no privileges or immunities. Administrative and technical staff members, service staff, and family members of these persons enjoy no privileges and immunities if they are U.S. nationals or have been determined by the Department of State to be permanently resident in the United States for the purposes of Article 38 of the Vienna Convention on Diplomatic Relations and Article 71 of the Vienna Convention on Consular Relations. (The group of individuals considered by the Department of State to be “permanently resident in” the United States for Vienna Convention purposes is larger than, but includes, lawful permanent residents.)
2 FAM 232.1-5 Special Bilateral Agreements
(CT:GEN-435; 12-16-2014)
The immunities set forth above may differ for personnel sent by a few foreign governments with which the United States has concluded bilateral agreements that grant to members of their respective embassies the privileges and immunities normally accorded only to diplomatic agents.
2 FAM 232.2 Career Consulate Personnel
2 FAM 232.2-1 Consular Officers and Employees
(CT:GEN-563; 10-07-2020)
a. Consular officers and employees in the United States generally enjoy immunity only with respect to acts performed in the exercise of consular functions. (”Consular functions are set forth in VCCR Art. 5.) Generally, they are subject to process of local courts but if the sending state asserts that the acts complained of were performed by consular staff in the exercise of consular functions and the court agrees, it will determine that the legal action (criminal or civil) against them cannot proceed.
b. Consular officers and employees may be called on to give testimony in a civil, administrative, or criminal court case, provided such testimony does not entail producing documents from their archives or giving evidence relating to their official duties. U.S. authorities and courts requesting such testimony must take all reasonable steps to avoid interference with the performance of a consular officer's official duties. See VCCR Art. 44.2 ("The authority requiring evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.")
c. A consular officer or employee is usually exempt from military, naval, air, police, administrative, or jury service of every kind, if they are:
· not a U.S. citizen
· not engaged in private occupation for gain
· not normally a U.S. resident at the time of appointment to the consulate
d. Consular officers are not subject to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by a competent judicial authority. This means that consular officers, but not consular employees, can be arrested only with a court warrant for a felony offense.
2 FAM 232.2-2 Special Bilateral Agreements
(CT:GEN-435; 12-16-2014)
The immunities set forth above for consular personnel may differ for consular personnel sent by foreign states with which the United States has concluded bilateral agreements that grant to consular staff members of their respective consulates greater privileges and immunities than other consular personnel.
2 FAM 232.3 Foreign Representatives to and Officials of International Organizations
(CT:GEN-563; 10-07-2020)
a. Foreign government representatives to international organizations in the United States are accredited to those organizations. Generally, the immunities of such representatives to an international organization, and those of their family members, are governed by the International Organizations Immunities Act (IOIA) and an executive order issued thereunder specific to that organization. The IOIA extends immunities to such representatives to an international organization when that organization has been duly designated by the President as entitled to the immunities provided by that Act. (A list of those organizations is available at 9 FAM 402.3-7(M), Designated International Organizations) Under the IOIA, representatives of foreign governments to designated organizations are immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives. In exceptional cases, however, immunities are granted to such representatives and their families by treaty. Such treaties include the Convention on Privileges and Immunities of the United Nations, the United Nations Headquarters Agreement, and the Agreement between the United States and the Organization of American States on Privileges and Immunities. The Bureau of International Organization Affairs (IO), the Office of Foreign Missions (OFM), and the Office of the Legal Adviser must determine the level of immunities enjoyed by such foreign representatives.
b. Generally, the immunities of officers and employees of an international organization, and those of their family members, are governed by the IOIA and an executive order issued thereunder specific to that organization. The IOIA extends immunities to such officers and employees of an international organization when that organization has been duly designated by the President as entitled to the immunities provided by that Act. Under the IOIA, officers and employees of designated organizations are immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as officers or employees. In exceptional cases, however, immunities are granted to such officers and employees, and their families by treaty. Such treaties include the Convention on Privileges and Immunities of the United Nations and the Organization of American States Headquarters Agreement. IO, OFM, and L must determine the level of immunities enjoyed by such officers and employees.
2 FAM 232.4 Accreditation and Related Documentation of Foreign Government Personnel Assigned to Diplomatic or Consular duty in the United States
(CT:GEN-563; 10-07-2020)
a. The Office of the Chief of Protocol (S/CPR) is the only Department of State office authorized to accept the accreditation of foreign bilateral Chiefs of Mission, Delegation Heads, Chargés d'Affaires and their dependents in the United States who, as a matter of international law, enjoy immunity from U.S. jurisdiction. S/CPR issues appropriate identification cards to such persons, (if applicable) when they accept the accreditation of such persons to the United States.
b. The Office of Foreign Missions (OFM) is the only Department of State entity authorized to accept the accreditation of all other foreign representatives in the United States (with the exception of USUN's responsibilities with regard to those individuals who are accredited by the United Nations at the Permanent Missions and Observer Offices, to the United Nations, and to the United Nations Secretariat and related Organs and Agencies). As appropriate, OFM issues identification cards to such persons subsequent to the accreditation or acceptance of notification of such individuals.
c. S/CPR and OFM must review records maintained under 2 FAM 234.4 before accepting any alien notified to it by the sending state. Even if already in possession of a visa, if probable cause exists to believe the alien committed a serious criminal offense (as defined in 2 FAM 233.3(b)) in the United States, then the Department must deny the request to accredit said individual as a member of a diplomatic or consular mission in the United States entitled to some level of diplomatic or consular immunity.
d. Foreign government representatives to an international organization are accredited to that international organization, and not to the United States. USUN issues appropriate identification cards to U.N.-accredited persons. OFM issues appropriate identification cards to persons enjoying immunity who are accredited to other international organizations.
2 FAM 232.5 Heads of State, Heads of Government, and Foreign Ministers
(CT:GEN-563; 10-07-2020)
a. Foreign heads of state, heads of government, and foreign ministers enjoy immunity from criminal and civil jurisdiction during their terms of office.
b. In the event of any request for or claim of immunity on the basis of status as head of state, head of government, or foreign minister, or part of their traveling party, L/DL should be immediately contacted.
c. In the event of any attempt to serve criminal or civil process on a head of state, head of government, or foreign minister, or part of their traveling party, DS should immediately contact L.
2 FAM 233 CRIMINAL AND CIVIL LIABILITY
2 FAM 233.1 General Policy
(CT:GEN-563; 10-07-2020)
Department policy is to formulate a comprehensive program for enforcement of limitations on diplomatic immunities and to control the abuse of such immunities in a manner that is both effective and consistent with international law. The Department's publication titled "Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities" provides detailed information and guidance concerning this topic. This publication is available at www.state.gov/ofm.
2 FAM 233.2 Background
(CT:GEN-563; 10-07-2020)
a. Under international law and practice, persons enjoying immunity from the jurisdiction of a receiving state’s laws nonetheless have a duty to respect those laws. Diplomatic immunity is based upon the principle that members of diplomatic, or comparable, missions or officials of international organizations enjoying such immunity need to pursue their official duties free from harassment and possible intimidation and without impediment to their performance of those duties. Immunity is not a license for misconduct. It is a doctrine intended to benefit the sending state or international organization, not individuals. Consequently, the U.S. Government expects chiefs of diplomatic missions, their counterparts in missions to international organizations, and the heads of international organizations headquartered or maintaining offices in this country, to educate their staff members, as well as family members enjoying derivative immunity, on their duty to respect U.S. laws and regulations. The U.S. Government also expects all missions and international organizations to consider in good faith all requests made for the waiver of immunity, and to take appropriate action against those who may abuse their immunity. In the end, the United States holds the chief of mission and the sending state or international organization responsible for the conduct of people sent to the United States as diplomatic representatives or other persons entitled to immunity.
b. The Department of State also recognizes that, by accepting foreign mission members who enjoy immunity from local jurisdiction, the Department has a responsibility to U.S. law enforcement authorities and the public to protect against abuse of that immunity. Where abuse occurs, it is Department policy to take prompt and effective action against the offender, consistent with U.S. international obligations, and, where appropriate, the offender's mission or government. Determinations whether a foreign official is entitled to immunity can be highly fact dependent and must be made as directed by the facts of the situation by S/CPR, USUN, OFM, as appropriate, in consultation with L, and when applicable the American Institute in Taiwan (AIT).
2 FAM 233.3 Criminal Violations
(CT:GEN-581; 09-26-2022)
a. Department policy with respect to criminal violations by persons with immunity from criminal jurisdiction is:
(1) To support law enforcement authorities to pursue the investigations, to prepare cases carefully and completely, and to document properly each incident so that charges may be pursued as far as possible in the U.S. judicial system;
(2) If a prosecutor informs the Department that, absent immunity, they would otherwise prosecute, to request the sending state or international organization in all cases to waive immunity so that all allegations may be fully adjudicated;
(3) In the absence of waiver (or exceptionally even with a waiver, following coordination with appropriate stakeholders), in cases of serious criminal offenses, as defined in subsection b. immediately below, or of multiple incidents involving lesser offenses, to require the alleged offender to leave the United States. Also, in the case of offenses by family members, to require departure of the mission member from whom the family member's immunity derives, as necessary;
(4) In all cases involving injury to other persons or damage to property, to support and assist efforts of the aggrieved to obtain prompt restitution from the individual offenders or their government; and
(5) To prevent the return to the United States of alleged offenders who were required to leave or who preemptively left this country because of alleged criminal conduct unless they submit fully to the jurisdiction of the U.S. court with jurisdiction over the offense.
b. For the purposes of this section, “serious criminal offense” is defined as any:
(1) felony under federal, state, or local law;
(2) federal, state, or local offense punishable by a term of imprisonment of more than 1 year;
(3) crime of violence, as defined in 18 U.S.C. 16(a) OR any other crime which involved the actual, attempted, or threatened use of violence against another person.
(4) a second offense of reckless driving or of driving while intoxicated or under the influence of alcohol or drugs, or a first such offense that results in death or serious personal injury to another person, or in significant property damage.
c. For any crimes above, which were committed by a minor dependent with immunity, the Office of Foreign Missions may, in consultation with L/DL and other relevant offices, decline to require the departure of the principal and all family members if the circumstances suggest that the minor does not pose a danger to the public and the incident is unlikely to be repeated. In those circumstances, OFM will work with the foreign mission to secure appropriate assurances regarding behavior management of the minor.
d. Each departure from this policy requires the written approval of the Secretary of State, Deputy Secretary of State, Under Secretary of State for Political Affairs, or Under Secretary of State for Management.
e. As noted in 2 FAM 233.3 paragraph (a)(2), Department of State general policy is to request a waiver of immunity from criminal jurisdiction in all criminal cases involving foreign personnel with such immunity. The purpose is to permit U.S. law to take its course in the investigation and prosecution of all aliens. Such waivers are sought in consultation and coordination with L/DL. Consistent with 2 FAM 233.3(c), exceptions to this general policy may be made where overriding foreign relations, national security, or humanitarian concerns justify such an exception. The approval of the Secretary of State, Deputy Secretary of State, Under Secretary of State for Political Affairs, or Under Secretary of State for Management is required for any exception. Such humanitarian concerns could be presented, for example, where the person’s continued presence in the United States is deemed to be dangerous.
2 FAM 233.4 Communication with Chiefs of Mission and Others
(CT:GEN-268; 02-28-1991)
Department of State personnel responsible for the implementation and enforcement of the program described in 2 FAM 233.1 should be familiar with the information about the program communicated to Chiefs of Diplomatic Missions in the United States (and comparable officers). The communication was by a circular Diplomatic Note of November 15, 1989, and the text of that note is 2 FAM Exhibit 233.4.
2 FAM 233.5 Cooperation with Law Enforcement Authorities
(CT:GEN-563; 10-07-2020)
a. To enhance the success of U.S. authorities in identifying alleged offenders, the Department will cooperate with Federal and local law enforcement authorities. Among other steps, the Department of State will:
(1) Continue educating and informing law enforcement authorities of the relevant principles of international law; and
(2) Encourage law enforcement personnel in particular to study carefully and consult with the Department on any claim of immunity, so as not to extend immunity from prosecution or other judicial process to persons not entitled to such treatment.
b. The Department's general policy with regard to non-resident aliens whose presence in the United States may generate foreign policy interest but who do not enjoy immunity from criminal jurisdiction is to let law enforcement take its course, just as for any other person subject to U.S. jurisdiction, and therefore no Department action would be warranted. In the rare case involving such individuals which presents significant foreign policy concerns, communication of such concerns by the Department of State to law enforcement personnel may be justified. Department personnel are prohibited from communicating such concerns without properly obtained authority at the appropriate Department level (see 2 FAM 234.2).
2 FAM 233.6 Civil Liability
(CT:GEN-563; 10-07-2020)
The Department of State is also concerned about any abuse of immunity from civil jurisdiction by missions, their members, and members of their families. S/CPR, OFM, and USUN (in the case of U.N. personnel or personnel assigned to a foreign mission to the U.N.) are the Department offices that ensure proper practices among the foreign mission community in paying just debts and discharging other just civil liabilities. Of particular concern is that OFM, which issues drivers’ licenses and vehicle registrations to certain persons with immunities, monitors and ensures compliance by that community with the liability insurance requirements of section 204A of the State Department Basic Authorities Act of 1956, as amended (22 U.S.C. 4304a).
2 FAM 234 DEPARTMENT ACTION
2 FAM 234.1 Certification of Immunity
(CT:GEN-563; 10-07-2020)
a. S/CPR, OFM, and USUN for U.N. personnel and personnel assigned to a foreign mission to the U.N., maintain records of individuals accorded privileges, exemptions, and immunities under United States law.
b. In any case in which an employing mission, international organization or United States law enforcement authority requests from the Department of State a certificate of immunity in a criminal or civil context pertaining to accredited personnel, S/CPR (for bilateral Chiefs of Mission, Heads of Delegation, Chargés d’affaires, Deputy Chiefs of Mission, and their dependents) or OFM (for all others aside from those reserved for USUN) will provide a certification setting forth the immunities enjoyed by the person at issue. (In certain instances OFM also provides informal certifications concerning immunities from criminal or civil process relating to driving offenses.)
c. In cases involving U.N. personnel, USUN may advise the employing mission, international organization or law enforcement authorities whether the person concerned has immunity of any kind and the extent of that immunity.
2 FAM 234.2 Other Actions in Criminal Cases
(CT:GEN-563; 10-07-2020)
a. Communications or actions by the Department are generally sought by law enforcement authorities, by courts, by or on behalf of individuals, by foreign governments, or by affected private citizens in two categories of criminal cases:
(1) Those involving persons who, by virtue of accreditation to the United States or to an international organization, or as personnel of an international organization, or family members of such personnel, enjoy immunity from criminal jurisdiction in the United States; and
(2) Those involving all other aliens, resident and non-resident.
b. Under U.S. law, aliens are generally entitled to the same rights and subject to the same responsibilities as U.S. citizens where litigation, both civil and criminal, is concerned. U.S. policy is that U.S. law should take its course in the investigation and prosecution of all aliens, to the extent consistent with international law. S/CPR, OFM, and USUN, as appropriate, may certify immunity and related information as described in 2 FAM 234.1. If the alleged offender enjoys immunity, the Department also takes the steps described in 2 FAM 233.
c. In each case involving allegations of criminal misconduct, L in coordination with S/CPR, OFM, DS, and USUN will make every effort to communicate to appropriate law enforcement authorities those investigative measures which are consistent with the immunity enjoyed by the individual and his mission (see 2 FAM Exhibit 233.4). S/CPR, OFM, or USUN, as appropriate, will request that the authorities inform it in writing of the disposition of each case.
d. When an alien who enjoys no immunity from arrest or prosecution is charged in the United States with a serious crime, and the case raises significant foreign policy concerns, it may be advisable for the Department to communicate those concerns to law enforcement personnel. The Secretary of State, Deputy Secretary of State, Under Secretary of State for Political Affairs, or Under Secretary of State for Management must approve communications with law enforcement personnel if the proposed Department communication seeks to influence the disposition of the case. Because of the inherently sensitive nature of criminal prosecutions, the technical issues likely to arise, the possible need to coordinate with the Department of Justice, and the need for consistency, requests for S, D, P, or M approval must be cleared within the Department as appropriate, including in all cases with L. Nothing in this section prevents communication between appropriate working level offices in the Department and their counterpart law enforcement officials with regard to matters outside the cases considered in this section.
2 FAM 234.3 Other Actions in Civil Cases
(CT:GEN-563; 10-07-2020)
a. The Department regional bureaus and IO should notify S/CPR, USUN, or OFM, as appropriate, and L in all instances, of any reported situation involving apparent failure of a foreign mission member to meet his or her financial obligations. Upon request, the regional bureaus and IO will assist S/CPR, USUN, and OFM in addressing such problem cases, in consultation and coordination with L.
b. The Department may intervene, through S/CPR, OFM, and USUN, and with the assistance of L, where the complainant notifies the Department of the matter in writing, and can produce satisfactory evidence that:
(1) A debt or civil liability is owed;
(2) The matter was brought to the attention of the mission member concerned and/or to the head of the mission, without resolution; and
(3) Immunity would preclude judicial or administrative action.
c. Finally, if outstanding debts are not settled within a reasonable period (not exceeding six months), continued reliance on immunity to evade a debt may affect a mission member's continued acceptability in the United States, to the extent consistent with U.S. international obligations. The departure of a mission member without settlement of outstanding debts may affect the Department's ability to accept a replacement and will also result in the United States notifying potential creditors to the extent practicable of all appropriate facts necessary for their self-protection.
2 FAM 234.4 Records
(CT:GEN-563; 10-07-2020)
a. S/CPR, OFM and USUN establish and maintain complete records of each reported case that comes to its attention in which a person with immunity from criminal jurisdiction in the United States has been accused of a crime in the United States. The record includes whatever action S/CPR, OFM, or any other Department office has taken in that case. Such records are shared with the Visa Office (in the Bureau of Consular Affairs) as appropriate to prevent the return to the United States of alleged offenders who were required to leave or who preemptively left this country as a result of alleged criminal conduct.
b. S/CPR and OFM also maintains records of all outstanding obligations of a person with immunity from civil jurisdiction that comes to its attention.
c. IO and USUN, each regional bureau, DS, and AIT/W will provide S/CPR, OFM, and L reports on all cases which come to their attention.
2 FAM 235 PROTECTION OF FOREIGN DIPLOMATIC PREMISES
2 FAM 235.1 Responsibility
(CT:GEN-435; 12-16-2014)
The Bureau of Diplomatic Security's Office of Protection (Protective Liaison Division-- DS/DO/P/PL), which maintains liaison with the Washington, D.C., Metropolitan Police Department and the Uniformed Division of the Secret Service, coordinates all matters relating to the protection of foreign diplomatic premises and their officials. Pursuant to United Nations General Assembly resolution 2819 of December 15, 1971, the United States as host country ensures the protection and security of the United Nations and U.N. Missions and their personnel in New York City. USUN relies on the Bureau of Diplomatic Security, working with the New York City Police Department, to do so.
2 FAM 235.2 Procedures
(CT:GEN-435; 12-16-2014)
a. All Department officers contacted in regard to these matters by any diplomatic mission must immediately inform the Protective Liaison Division (DS/DO/P/PL).
b. After coordinating with S/CPR or IO and USUN, OFM, L, and the regional bureau concerned, as necessary, DS/DO/P/PL ensures on behalf of the Department that all necessary action is taken.
2 FAM 236 THROUGH 239 UNASSIGNED
2 FAM Exhibit 233.4
TEXT OF 11-15-89 CIRCULAR DIPLOMATIC NOTE TO CHIEFS OF DIPLOMATIC MISSIONS IN
THE UNITED STATES
(CT:GEN-268; 02-28-1991)
The Secretary of State presents his compliments to Their Excellencies and Messieurs and Mesdames the Chiefs of Mission and has the honor to refer to previous diplomatic notes from the Department of State on the subject of immunity from the jurisdiction of the United States.
Despite cooperative measures among the Department of State, United States law enforcement authorities, and the addressee missions, there continues to exist a relatively small, but unacceptable, number of members of the foreign diplomatic community in the United States who abuse their immunity from criminal jurisdiction under international law. The Department has taken a number of reaffirming measures, particularly since enactment of the Diplomatic Relations Act of 1978 and the Foreign Missions Act of 1982, to ensure that the activities of the foreign diplomatic community and other persons who have immunity from criminal jurisdiction by virtue of their official status as representatives of a foreign government or international organization conform with U.S. and applicable provisions of international law. Nonetheless, the Department of State, sharing the concern of the United States Congress and the public at large, has devised a strengthened, comprehensive program for enforcement of an appropriate system for regulating diplomatic immunities, in a manner that is both effective and consistent with international law.
Under international law and practice persons extended immunity from the jurisdiction of host country laws nonetheless are obligated to respect those laws. As all nations recognize, diplomatic immunity is based upon the principle that duly accredited members of diplomatic missions must be able to pursue their official duties free from harassment and possible intimidation and without impediment to their performance of those duties. However, immunity is not a license for misconduct. It is in fact a doctrine intended to benefit the functioning of the mission, not to personally benefit its individual members. Consequently, the Government of the United States in the first instance looks to chiefs of diplomatic missions, to their counterparts in missions to international organizations, and to the heads of international organizations headquartered or maintaining offices in the United States to counsel members of their staffs, as well as family members who enjoy derivative immunity, on their duty to respect the laws and regulations of this country. Ultimately, the United States will hold the Chief of Mission and the sending government responsible for the conduct of persons sent to the United States as diplomatic representatives or of others entitled to immunity. The Department also expects all missions to consider in good faith requests made for waivers of immunity and, in addition, to take appropriate action against those who may abuse their immunity.
The Department of State reiterates that criminal violations will not be tolerated by the United States Government or the community at large. While the Department will continue to take necessary action as required by international law to safeguard and preserve the immunity of persons allegedly involved in criminal behavior, the Department wishes to communicate the corrective measures consistent with international law that are being taken in cases involving serious criminal conduct, in particular crimes of violence, recurrent offenses of a less serious nature, or other egregious abuses of immunity.
In this regard, the Department wishes to emphasize the following points:
1. The Chiefs of Mission must ensure that the members of their missions and eligible members of their families apply for and receive identity cards issued by the Department of State. Those cards contain not only the official identification of the person but also a statement of the extent of the bearer's immunity. Only persons properly notified to and accepted by the United States Government can be issued documents stating their immunity, and have their status confirmed through the Office of Protocol of the Department of State. In order to ensure that proper notification is given of termination of mission members upon departure, except for those missions subject to a bilateral ceiling restricting the number of official employees at the mission, henceforth notification of new personnel to be accredited must include either information on which person is being replaced at the mission and the date of termination of the predecessor, or a certification that the new person will occupy a new position. Until such time as a revised form reflecting these changes in the regulations is available, such information should be included at the bottom of the appropriate notification form. An example is attached.
2. A diplomatic agent possessing proper identification may not be arrested or detained. It is emphasized, however, that the United States has a duty to protect the safety and welfare of the public, including other diplomats, and to take reasonable steps to prevent the commission of crimes. United States law enforcement authorities therefore have been instructed that, in circumstances where public safety is in imminent danger or it is apparent that a serious crime may otherwise be committed, police authorities may intervene to the extent necessary to halt such activity, even in cases involving diplomatic agents. This includes the power of the police to defend themselves and others from personal harm. At the same time, law enforcement authorities will also take any necessary action to ensure that a diplomatic agent does not bring harm to himself. Mission personnel having a lesser degree of immunity, of course, are also subject to these measures, as well as any other measures consistent with their more limited immunity.
3. Persons with immunity from criminal jurisdiction, consistent with international law, are subject to criminal investigation to the same extent as any other person residing in the United States, as may be required. Chiefs of Mission are requested to instruct members of their missions, and the family members of those members, to cooperate fully with such investigations. United States law enforcement authorities have been instructed to pursue vigorously investigations, to prepare cases carefully and completely, and to document properly each incident of alleged commission of a crime. These steps are required so that charges against alleged offenders may be pursued as far as possible in the United States judicial system consistent with their immunity. These steps are also necessary to ensure that investigative reports provide sufficient information to initiate diplomatic measures against an alleged offender. Such steps may be important also to protect foreign mission personnel alleged to have been involved in criminal misconduct, as investigation of allegations of wrongdoing will determine whether or not they are substantiated.
4. As a matter of general policy, in all cases involving allegations of criminal misconduct, the Department requests the sending government to waive immunity so that allegations of criminal or other misconduct may be adjudicated fully and resolved pursuant to U.S. law. Where a waiver of immunity is refused, the United States Government normally will require in the case of serious offenses that the alleged offender depart the country, including, where necessary, in the case of such serious offenses by family members, departure of the mission member from whom the family member's immunity derives. Even where a waiver of immunity has been granted, the Department retains discretion to require the departure of the alleged offender where necessary. For the guidance of missions, the Department considers serious offenses to include: (1) any felony, (2) any crime of violence, such as an attack with a firearm or dangerous weapon, or (3) driving under the influence of alcohol or drugs, which causes injury to persons. In addition, the Department is particularly concerned about those situations where there is a pattern of recurrent, though less serious, offenses, especially those involving drugs or driving without insurance.
5. The Department of State further, as a matter of policy, seeks to prevent the return to the United States of persons entitled to immunity who, as alleged offenders, have been required to leave this country. The Department will not accept such persons in representative capacities thereafter which would establish any degree of immunity from criminal jurisdiction in their behalf.
6. In all cases involving injury to persons or damage to property, the Department of State intends to pursue vigorously the interests of the aggrieved parties in obtaining prompt restitution by individual offenders or from their governments.
7. The Department wishes to remind the missions that in any case involving criminal activity no immunity exists against the arrest and prosecution of a person formerly entitled to privileges and immunities who returns to the United States following the termination of his or her official duties, unless it can be proved that the crime related to the exercise of official functions. That defense is adjudicated by the courts. The Department recognizes that the threat of prosecution may serve, as a practical matter, to prevent individuals who commit crimes while in privileged status from returning to the United States. To ensure that such individuals do not return without appropriate review by United States authorities, the Department reaffirms its requirement that the sending government forward the passport of the alleged offender (and of family members in appropriate cases) to the Department before he or she departs the United States so that the visa may be revoked and the form I-94 returned to the Immigration and Naturalization Service. Should the alleged offender leave the United States before the visa is canceled, the Department reserves the right to refuse a replacement for the offender (or his or her principal in the case of a crime committed by a dependent) on the mission staff, to the extent permitted under international obligations, until the outstanding visa is revoked.
8. The Department of State has measures already in place to prevent persons, for whom there is reason to believe that they have committed a serious criminal offense, from reentering the United States in a diplomatic or consular capacity after having been required to leave this country. These measures include entering data on the alleged offender in the Department's Automated Visa Lookout System. This information is shared with the Immigration and Naturalization Service and used by the INS at ports of entry into the United States. Also, as already noted, the Department requires cancellation of existing visas when a foreign diplomat leaves the United States as a result of alleged commission of a criminal offense.
9. In addition, the Department of State is seeking legislation which would add a new category of ineligibility for visas and for admission to the United States. This new provision would exclude from the United States persons for whom there is reason to believe that he or she committed a serious criminal offense in the United States, for whom immunity from criminal jurisdiction was exercised, and who left the United States as a con-sequence, thus preventing adjudication of guilt or innocence in United States courts.
10. The Department of State defines "member of the family" for purposes of immunity from criminal jurisdiction as a person who is in one of the following relationships to an official representative of a foreign government or another person who has immunity from criminal jurisdiction by virtue of his or her official status:
(A) the spouse of such representative or other person and his or her unmarried children under 21 years of age, who are not members of some other household, and who reside exclusively in the principal's household, if the spouse or children are not nationals (in the case of a diplomatic agent) or (in the case of other representatives) nationals or permanent residents of the United States;
(B) the unmarried children of such representative or other person who are under 23 years of age and attending an institution of higher education on a full-time basis, if they are not nationals (in the case of a diplomatic agent) or (in the case of other representatives) nationals or permanent residents of the United States; and
(C) under exceptional circumstances and with the express advance approval of the Department of State, other persons who are not members of some other household, who reside exclusively in the principal's household, and who are recognized by the sending State as members of the family forming part of the household.
The Department of State also takes this opportunity to remind the Chiefs of Mission of previous circular notes on the policies and procedures affecting their missions and staff, particularly the notes of September 21, 1987, and March 21, 1984, regarding the conduct of diplomatic agents in the United States; the notes of April 1, 1986, and May 8, 1985, regarding motor vehicle requirements; the notes of August 17, 1987, and September 9, 1985, regarding traffic fines; the note of July 3, 1985, regarding operation of motor vehicles while under the influence of drugs or alcohol; the note of July 5, 1984, regarding registration of motor vehicles; the note of March 17, 1987, regarding liability insurance; the notes of December 19, 1988, May 21, 1986, and February 3, 1983, concerning the possession and carrying of firearms; and the note of October 24, 1986, regarding identification cards and updating of such cards. (Copies of these notes are enclosed for the convenience of the missions.)
The Department of State reminds the Chiefs of Mission that, as in the case of personal immunity of individuals, the inviolability of diplomatic and consular pouches is based upon the need of missions to have free communication with their governments and missions in other countries or elsewhere in the United States. The Department will not tolerate abuses of this inviolability to bring into the United States or transport within the United States illegal substances, such as narcotics, explosives, firearms and other material illegal under United States law and regulation. The Government of the United States will take all steps consistent with international law to detect, prevent, and punish such abuse.
In conclusion, the Department of State urges the Chiefs of Mission to ensure that members of their missions, and their dependents, pay their just debts, and that all necessary and appropriate steps are taken by waiver of immunity, insurance, or otherwise to discharge obligations arising from the presence and activities of the missions, their members and dependents. The Department strongly recommends that the missions and their members obtain liability insurance, in addition to the level of motor vehicle insurance already required by the U.S. Government, to cover property losses or injury arising out of their activities.
Where the Department learns that missions or their members have failed to discharge legitimate debts within a reasonable time, or are otherwise financially liable for activities undertaken in the United States, upon request, the Department will intervene to secure payment. In particular, it is the Department's practice to assist in resolving outstanding debts of mission members where the complainant notifies the Department of the matter in writing, and can produce satisfactory evidence 1) that a debt or civil liability is owed, 2) that the matter has been brought to the attention of the mission member concerned and to the head of the mission, without resolution for an unreasonable period (pending without resolution for six months or more), and 3) that immunity would preclude judicial or administrative action. The Department must advise the Chiefs of Mission that reliance on immunity to evade a financial obligation under law could call into question a mission member's continued acceptability in the United States. In addition, the departure of a mission member without settling outstanding financial liabilities could affect the Department's willingness to accept a replacement, and could cause the United States to advise prospective creditors of the financial unreliability of the mission or its members.
The Department will closely study the manner in which the respective missions discharge this responsibility and will take those diplomatic measures which will be both effective and consistent with international law.
Enclosures:
1. Circular Notes of September 21, 1987, March 21, 1984, April 1, 1986, May 8, 1985, August 17, 1987, September 9, 1985, July 3, 1985, July 5, 1984, March 17, 1987, December 19, 1988, May 21, 1986, February 3, 1983, and October 24, 1986.
2. Examples of Notification Forms.
Department of State,
Washington, November 15, 1989.