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5-14. Protection of Diplomatic Personnel in Transit. of the opinion that only two alleged errors are worthy of consideration:
The immunities of diplomats while in transit through the (1) that the District of Columbia police had no authority to enter the Ira-
territory of a third state have long been the subject of con- nian Embassy and arrest Iranian nationals for a crime committed within
siderable controversy. 35 However, much of the debate the confines of the Embassy; and (2) even if the inviolability of the Em-
bassy could be waived, the Minister had no authority to waive it. Ap-
surrounding this topic has ceased as a result of Article 40 pellants contend that a foreign embassy, protected by the doctrine of in-
of the Vienna Convention. violability, which extends to diplomatic dwellings, is not subject to the
Art. 40 (1) If a diplomatic agent passes through or is in the territory of jurisdiction of the local police and courts of the receiving state or to its
a third State, which has granted him a passport visa if such visa was body of criminal law. We fid scant authority to support this contention;
necessary, whiie proceeding to take up or to return to his post, or when indeed the weight of authority is to the contrary.
returning to hi? own country, the third State shall accord him in- Since our decision must rest in part upon principles of intemational
violability and such other immunities as may be required to ensure his law, which is part of the law of the land, we have examined custom, case
transit or return. The same shall apply in the case of any members of his decisions and the works of the treatise writers to aid in ascertaining the
family enjoying privileges or immunities who are accompanying the dip- nature of the particular questions here involved. Although case law is
lomatic agent, or travelling separately to join him or to return to their not controlling in determining issues of international law, recorded deci-
country. sions help in analyzing the custom or trend of the law in a given area.
(2) In circumstances similar to those s@~ed in paragraph 1 of We believe that the weight of international case law as reinforced by the
this Article, third States shall not hinder the passage of members of the treatise writers 5 establishes as a modem rule of international law that
administrative and technical or service staff of a mission, and of mem- (1) a foreign embassy is not to be considered the territory of the sending
bers of their families, through their territories. state; and (2) local police have the authority and responsibility to enter a
(3) Third States shall accord to official correspondence and other foreign embassy if the privilege of diplomatic inviolability is not invoked
official communications in transit, including messages in code or cipher, when an offense is committed thereon in violation of local law.
the same freedom and protection as is accorded by the receiving State. Representatives of a foreign sovereign are given immunity from the
They shall accord to diplomatic couriers, who have been granted a operation of the laws of the receiving nation, and the premises and
passport visa if such visa was necessary, and diplomatic bags in transit buildings occupied by the diplomatic mission usually are regarded as in-
the same inviolability and protection as the receiving State is bound to violable by the authorities of the receiving state. This is grounded upon
accord. the international law concept that all sovereigns are equal and that the
(4) The obligations of third States under paragraphs 1, 2 and 3 of representatives of a particular sovereign serve in the place of the one
this Article shd also apply to the persons mentioned respectively in sending them. "No act of jurisdiction or administration of the receiving
those paragraphs, and to official communications and diplomatic bags, Government can take place within [the confines of an embassy] except
whose presence in the temtory of the third State is due to force by special permission of the envoys. " (Emphasis added.)
That the diplomatic premises are a part of the temtory of the sending
5-15. The Inviolability of Diplomatic Premises. a. The state and therefore always exempt from local laws does not follow as a
concept of jurisdictional immunity as it relates to diplo- matter of course, however. "The modem tendency among writers is
matic premises is very often misunderstood and misap- toward rejecting the fiction of extraterritoriality * * * ." Numerous case
plied. The case which follows serves the dual purpose of decisions bear out this trend. As early as 1867, the doctrine of extrater-
setting forth the law as it exists and dispelling many of the ritoriality was abandoned by European nations. Recently, in the case of
R. v. Kent, the British courts held that "A crime committed in a foreign
myths surrounding this particular principle. embassy is a crime committed in the United Kingdom and the offender,
ifnot protected by diplomatic immuniw, is liable to prosecution in British
FATEMI v. UNITED STATES
United States Court of Appeals, District of Columbia, 1963.
courts." (Emphasis added.)
192 A.2d 525.
Appellants have failed to distinguish cases in which the privilege of
diplomatic immunity is invoked from those in which it is not. If a mem-
MYERS, ASSOCIATE JUDGE.These are consolidated appeals of four- ber of the diplomatic community asserts his claim to immunity, then the
teen Iranian nationals from convictions for "unlawful entrv" under Ti- local police are powerless to act. Only if the criminal act beiig committed
tle 22 D.C. Code 5 3102, 1961 Ed. by the diplomat is such as to endanger the public may the police dis-
Appellants, Iranian students studying in this country, entered the Ira- regard the inviolability of an embassy and enter to seize the offender.
nian Embassy to deliver a petition protesting an Iranian land reform Even in this situation the police may only hold the accused to prevent
referendum. After they had staged an overnight "sleep-in," embassy injury to the public, and only until the Department of State can request
officiak requested the Metropolitan police to come to the embassy. his recall, but the law enforcement officers are powerless to prosecute
Several police officers, headed by a captain, entered the embassy and the offender. Such is not the instant case, involving an embassy to
talked with the Minister who gave the captain a formal, written request which the police had been invited in order to arrest and remove Iranian
addressed to the Metropolitan Police Department asking the police to students who have no claim to the privilege of immunity and were
enter the embassy, eject the students from the premises and arrest them violating local law.
because, after a lawful entry on the previous day, they had refused to Appellants' next contention-that even if the inviolability of the dip-
leave upon demand of the person lawfully in charge. The Minister then, lomatic dwellings can be waived, the Mister of the embassy had no
in the presence of the police, again asked the students to leave within authority to do so-that the waiver must come only from the Am-
five minutes, addressing them in both Iranian and English. When they bassadoris equally without merit.
refused to depart they were placed under arrest and bodily carried from We do not think it unreasonable to hold that a police captain can
the embassy. enter the Iranian embassy and make an arrest for a misdemeanor com-
Following trial on January 22, 1963, the defendants, having refused a mitted in his presence when he has been called by one who purports to
continuance and having chosen not to testify, but at all times fully repre-
sented by counsel, were found guilty. 5. A few sclections fmm the uealk disclose:
Appellants complain numerous errors were comrnited below. We are (a) ' ' Kacrime iscommitted insidethe house of nn envoy by nn individual who da not
enjoy personsUy the privilege of extraterritoriality, the criminal must be surrendered to the I d
3s. For a concise summary, see Harvard Research in Inrernational Government. 1 Oppenbeim, International Law (8th Ed. Lauterpafht Edilor 1955) 8 390.
@) The inviolability ofdiplomatic premisesdoes not mean Ulat they are lo be consideredas
Law, Diplomatic Privileges and Immunities, 26 Am. J. Int'l L. Supp. IS, altogether outside the application of the law of the receiving statbe foreign enclave within ie
85-88 (Art. 15) (1932). territory. Brierly. The Law of Nations (6th Ed. 1963). .>.