Can’t Touch This

How far does diplomatic immunity go?

How much can a diplomat get away with?

Qatari diplomat Mohammed al-Madadi caused a scare onboard a flight from Washington, D.C., to Denver on Friday by smoking in the bathroom. When confronted by U.S. marshals, he reportedly made a crack about lighting a bomb in his shoes and said he had diplomatic immunity. How far does diplomatic immunity go?

It depends on your rank. Top diplomatic officers have full immunity, as do their deputies and families. That means ambassadors can commit just about any crime—from jaywalking to murder—and still be immune from prosecution. They can’t be arrested or forced to testify in court. (This category would probably include al-Madadi, who serves as third secretary in the Qatari embassy.) Lower-ranking officials have a weaker type of protection called “functional immunity.” These officials are covered only for crimes committed within the scope of their regular work responsibilities. If, for example, a consular official got into a fistfight during a meeting with a U.S. official, he would be protected from prosecution. If the fight occurred at a bar over the weekend, he would not. Service staff for an embassy or consulate, from the kitchen employees to the valets, have no immunity whatsoever. And, contrary to popular belief, any diplomat can be issued a traffic citation. They just can’t be forced to pay it. (See the State Department’s breakdown of immunity levels here.)

There are limits, of course: Diplomats can’t go around shooting people without consequences. The United States has the right to declare someone a persona non grata and to send him home for any reason. The official’s home country can also try him at a local court. In the most egregious cases, the home country can waive the official’s immunity privilege, in which case the offending diplomat can face prosecution in the United States. In 1997, for example, the Republic of Georgia waived the immunity of its No. 2 diplomat after he killed a 16-year-old girl from Maryland while driving drunk. He was prosecuted, convicted of manslaughter, and served three years in a North Carolina prison before returning to Georgia, where he was paroled after two more years in prison.

Immunity goes both ways, of course: American ambassadors have the same privileges overseas that their foreign counterparts do here. In 2006, the United States refused to lift the immunity of a Marine stationed at its embassy in Romania after the man killed a famous Romanian musician in a drunk-driving accident. (He was court-martialed instead.) That same year, London Mayor Ken Livingstone threatened to sue the United States over $575,000 in unpaid road tolls.

Diplomatic immunity has been around for hundreds of years under customary international law as something of a golden rule: Treat other diplomats as you would like yours to be treated. This custom has also helped prevent politicians from ordering the prosecution of diplomats on trumped-up charges as a way to pressure their foreign enemies. The rules of diplomatic immunity were codified in 1961 in the Vienna Convention on Diplomatic Relations.

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Explainer thanks Hurst Hannum of Tufts University.

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