Why isn't the concept of diplomatic immunity rejected?

Question

Diplomatic immunity says that diplomats cannot be prosecuted in the country they are visiting as a diplomat for. It can be interpreted as saying that diplomats are above the law in the country they are visiting.

If there is a concept that no one is above the law, why isn't the concept of diplomatic immunity rejected in countries where nobody is supposed to be above the law?

I am asking because this has been abused multiple times. Most of these violations are minor like parking, but others are very serious.

Answer 1

I think one of the best explanations for this comes in the preambulatory clauses of the Vienna Convention on Diplomatic Relations which codified diplomatic immunity, and which has been ratified by 192 states. It reads:

The States Parties to the present Convention,

Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents,

Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations,

Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,

Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,

Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention,

Have agreed as follows: ...

Diplomatic immunity is deemed necessary for the continuation of international diplomacy because it ensures a country's diplomats' safety from persecution by the authorities. You, do, however, raise a good point that this can often be taken advantage of - some examples that spring to mind include the estimated £116m of congestion charges owed to Transport for London by diplomats, and the death of Harry Dunn in a vehicle collision in 2019.

However, a blanket ban on the prosecution of diplomats precludes a situation where the diplomat's country might call into question the validity of charges against a diplomat, and also prevents countries manufacturing charges in the first place.

In addition, although the Vienna Convention ensures that diplomats are in some ways above the law, it doesn't make them completely immune. Immunity can be waived by the sending country (Article 32), and the host country can always expel diplomats by declaring them persona non grata (Article 9). In addition, there are exceptions to the immunity, for example, diplomats can be prosecuted with relation to any professional or commercial activity they have conducted outside of their official functions.

In general, though, diplomatic immunity is respected even in the most egregious cases of clear wrongdoing, as to do otherwise would be to invite other countries to retaliate with relation to one's own diplomats. It would also call into question the independence of the judiciary, potentially leading to an even worse breakdown in law and order than that caused by a few diplomats enjoying immunity from prosecution.

Answer 2

One element of diplomatic immunity that is overlooked by the existing answers is that it represents an attempt to place the treatment of foreign diplomats in the control of the officials in charge of a state's diplomatic relationships and no one else.

It is easy to imagine a situation where the national policy of a state's diplomatic service and/or the head of state is to pursue friendly relations with a foreign state, but where other officials or lower office holders disagree with that policy - and use their control of lower offices to harass the foreign state's diplomats, as a way to undermine the official national policy.

Answer 3

As CDJB pointed out in their answer, without diplomatic immunity countries would be very reluctant to send any diplomats at all.

In theory, if a diplomat invokes immunity over a parking ticket, this transfers the debt to their home country. The home country can then decide whether they will pay the ticket or contest it.

In practice, however, everybody involved just decides that this is way too much bother and will let it slide.

For more serious offenses, the host country can insist on getting reparations/fines paid, they can also expel the diplomat.

I have been told by the son of a diplomat that any Norwegian diplomat who gets mixed up in something like that will be taken home and then at least fired. Possibly also prosecuted by Norwegian law if relevant.

Answer 4

Diplomatic immunity is a right that is asserted by the sending country, not the diplomat. It's up to the sending country whether to prosecute the diplomat. They can prosecute the diplomat in their own courts, allow the host country to prosecute in their courts, both, or neither. Basically, the sending country retains jurisdiction over the diplomat. The host country has no more jurisdiction over the diplomat than if the diplomat had committed the crime in the sending country. Just as the US not being able to prosecute a French person who commits a crime in France doesn't mean that person is "above the law", the US not being able to prosecute the French diplomat for a crime they commit in the US doesn't mean they're above the law.

A diplomat is in the host country as a representative of the sending country, and has no personal criminal liability towards the host country. Anything they do is on behalf of the sending country, and it's the sending country in general, not the diplomat personally that is held responsible. There are similarities towards treating of foreign military: invading soldiers are not subject to the criminal courts of the country they are invading (assuming they are in uniform, following orders, not committing war crimes, etc.). They can be detained as POWs, but not criminally prosecuted. It's their country, not them personally, that are held responsible.