Revisiting Diplomatic Immunity in the 21st Century

By Joanne Koulet-Vickot

In the United States alone, well over 100,000 individuals cannot be tried for most crimes. Theoretically, they can ignore parking tickets, cannot be arrested or detained, never have to pay taxes, and cannot be stopped from fleeing a country after committing a crime — simply because they have diplomatic immunity. Under numerous international agreements, including the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations, diplomatic immunity stipulates that certain foreign government officials cannot be subjected to the jurisdiction of local courts and authorities for acts committed in official and personal capacities. These officials include members of diplomatic missions or embassies, individuals in consular posts, and employees of international organizations. Two notable aspects of diplomatic immunity exist: functional and personal immunity. Functional immunity protects acts committed in an official capacity, whereas personal immunity offers limited and temporary protection based on the individual’s role. There are varying levels of immunity offered to different officials. Diplomatic agents (i.e., ambassadors and diplomatic officers) are afforded both types of immunity. In general, they cannot be handcuffed, arrested, detained, have their property searched, be prosecuted, or be forced to testify. This immunity extends to their family members. Members of the administrative and technical staff (i.e., secretaries, clerical personnel, office managers, and professional security staff) have similar protections; however, they’re protected only from civil suits connected with their official duties, whereas their family members aren’t, since they have no official capacity. Lastly, members of the service staff (i.e., drivers and cleaners) only have personal immunity. They’re protected from civil suits linked to official acts, while their family members have no immunity. At its creation, the rationale behind diplomatic immunity was to ensure foreign officials could effectively and efficiently perform their official duties. However, in recent years, there has been substantial controversy over officials and their governments increasingly exploiting that immunity by a) abusing their exempt status to refuse compliance with national or local laws and b) acting with impunity; thus prompting the question: Does the contemporary pattern of abuse require a reinterpretation or amendment of diplomatic immunity?

Although it may seem that a foreign official can break local laws without redress, some argue that local authorities can pursue them legally, namely, by deporting the individual, prosecuting them in their home country, and declaring them a persona non grata. However, this mechanism simply removes the person from the host country, offering no justice for victims, especially since investigations can be entirely stalled due to limited evidence gathering; it’s a political gesture rather than a legal consequence. Likewise, host countries hesitate to use these mechanisms because doing so requires evidentiary standards that are difficult to meet and risks diplomatic tension. For instance, in 2023, after Canada accused Indian diplomats of the assassination of Hardeep Singh Nijjar, a prominent leader in the Khalistan movement, which seeks an independent Sikh nation on Indian territory, the Indian government retaliated by accusing the Canadian government of “pandering to the country’s large Sikh community for political gain”. It proves that attempting to hold diplomats accountable can trigger political backlash, deterring host countries from taking action in the first place. It can also be argued that diplomatic immunity can be withdrawn once a diplomatic or consular mission has been completed, or if the foreign official’s government waives their immunity. While these accountability mechanisms exist, they’re rarely invoked and often result in nominal or on-paper accountability rather than tangible action. For instance, the United States often does not waive immunity for its diplomats accused of foreign crimes, arguing that foreign countries couldn’t guarantee an adequate standard of justice. Ultimately, waiving an official’s immunity sets a precedent that may expose their officials abroad, which in turn can harm a country’s reputation and strategic interests; hence, it is not often done. Furthermore, it may be posited that diplomatic immunity doesn’t extend to all activities conducted by a foreign official. For instance, officials are often not protected under professional or commercial activities that serve personal interests or fall outside the scope of their duties. However, distinguishing these boundaries can be difficult, since immunity ultimately shields officials from any actions that could otherwise hinder their work, which can be broadly interpreted. In all, although diplomatic immunity has theoretical provisions for accountability, they’re impractical because they’re limited in their enforcement power, rarely used, and are difficult to justify due to ambiguous terms.

In recent years, there have been notable instances of foreign officials abusing their diplomatic immunity. For example, in 2019, a 19-year-old British man, Harry Dunn, was killed in a vehicle collision with Anne Sacoolas, an employee of the U.S. Intelligence Community and the wife of an American CIA employee with diplomatic immunity. Although Sacoolas initially cooperated with local authorities and later pleaded guilty to careless driving, her diplomatic immunity enabled her to return to the U.S. and avoid imprisonment altogether. The U.S. government rejected the United Kingdom’s request to waive her immunity and extradite her to face charges, justifying their decision on the grounds that otherwise would be an “egregious abuse…that would establish a troubling precedent”. Despite her automatic immunity, some also believe the U.S. government was keen on protecting her because she held a highly secretive role. In either circumstance, the justification of immunity was used to protect actions that are far removed from legitimate diplomatic duties, underscoring the emerging pattern of misuse.

Moreover, diplomatic immunity can enable individuals to violate international law due to unclear immunity protections and weak enforcement. In 2000, a Belgian judge issued an international arrest warrant for Abdulaye Yerodia Ndombasi, the former Minister for Foreign Affairs of the Democratic Republic of the Congo (D.R.C.), for war crimes and crimes against humanity conducted in the D.R.C.. Belgium believed it had the authority to issue the warrant under the now-repealed 1993 Law on Universal Jurisdiction, which granted Belgian courts the “universal jurisdiction in respect of serious violations of international humanitarian law”. However, the D.R.C. protested the warrant by filing a claim with the International Court of Justice (ICJ). Ultimately, the ICJ ruled in favor of the D.R.C., affirming Ndombasi’s diplomatic immunity as a barrier to criminal jurisdiction. In addition to shielding Ndombasi from facing immediate accountability for crimes prohibited by international law, such as the Geneva Conventions, the ruling revealed the complexity and ambiguity inherent in its framework. Firstly, the ICJ ruled from a narrow standpoint, largely ignoring how war crimes and crimes against humanity are a part of jus cogens, meaning they’re fundamental and peremptory principles. By superseding international humanitarian law, the ICJ elevated diplomatic immunity above peremptory norms, reinforcing concerns that the doctrine can be invoked even when accountability is mandated by the highest hierarchy of international law. Additionally, despite longstanding international and national recognition that functional immunity cannot shield officials from prosecution for humanitarian crimes — as reflected in precedents such as the Nuremberg and Eichmann trials — the ICJ nevertheless extended functional immunity to Ndombasi for those very acts, further intensifying doctrinal confusion. Overall, diplomatic immunity has historically been interpreted in a way that limits impunity for serious international crimes, while also contributing to doctrinal ambiguity.

Ultimately, while diplomatic immunity is essential for protecting foreign officials and allowing them to exercise their duties, numerous recent cases have highlighted its shortcomings, particularly in facilitating criminal acts, hindering accountability, and complicating enforcement. It suggests a need for a global reevaluation of diplomatic immunity, with standards that safeguard against the harms it has enabled. Recent years have seen notable developments in the re-evaluation of diplomatic immunity. For instance, in November 2025, following a complaint by former employees of the Pakistani embassy in Switzerland, the Swiss Federal Supreme Court ruled that diplomatic immunity could not be invoked to block legal action over alleged worker exploitation. This decision marks a rare but significant step towards greater accountability in a system that long shielded foreign officials from legal scrutiny. If recent rulings are any indication, the path forward may involve redefining immunity not as an absolute shield, but as a privilege conditioned on respect for basic human dignity.