Page 30 - Diplomatic Consular Immunity

Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities

22 Expulsion Procedure Official Acts Immunity

The criminal immunity that foreign As explained in Section III, official acts
diplomatic and some consular personnel enjoy immunity is not a prima facie bar to the
protects them from the normal jurisdiction exercise of jurisdiction by U.S. courts.
of the courts with respect to alleged criminal Rather, it is an affirmative defense to be
activity. However, in those instances in which raised before the U.S. court with subject
a person with immunity is believed to have matter jurisdiction over the alleged crime.
committed a serious offense (any felony or Only such court, in the full light of all the
crime of violence) and the sending country has relevant facts, determines whether the
not acceded to the U.S. Department of State’s action complained of was an official act.
request for a waiver of immunity, it is the Should the court determine that official
Department’s policy to require the departure acts immunity applies in a certain case,
of that individual from the United States. international law precludes the further
Requiring the departure of a person who exercise of jurisdiction by the United States.
enjoys immunity is an extreme diplomatic Judicial determination in a case of this
tool, and it is used only after the most careful type is very much dependent on the facts
consideration to ensure that the United surrounding the incident; therefore, a full
States is not perceived as having acted in an and complete police report may be critical in
arbitrary, capricious, or prejudiced manner. A permitting the court to make a just decision.
high standard of police investigation, records,
and reporting in diplomatic incident cases is
therefore essential to permit the Department
to make the appropriate decision.