June 13, 2005

On Diplomatic Immunity

Last week, I wrote about Amnesty International's call for the arrest of George Bush by any country he visits, along with other American officials involved in the war on terror. Besides castigating AI-USA for its lack of proportion and perspective, I also noted that such an action would violate diplomatic immunity. In response, I received this note from an officer in the US Foreign Service who wishes to remain anonymous. He agreed with the post in general but wanted to be sure that readers understand who gets diplomatic immunity and when:

An excellent post, but one point on diplomatic immunity. According to Articles 29 and 32 of the Vienna Convention on Diplomatic Relations (VCDR), the only people entitled to full diplomatic immunity are fully accredited diplomats to a given country.

It's a common misconception that high-ranking officials, e.g. President Bush, Secretary Rumsfeld, and others, also have diplomatic immunity. They don't. Sometimes, people on temporary duty are given limited immunities (sometimes called "administrative and technical status," from Article 37.2 of the VCDR), but these immunities are not sought for visiting senior U.S. officials. In some case they are requested for temporary embassy staff or for U.S. soldiers in countries with which we have no Status of Forces Agreement.

That's why the State Department is pushing so-called "Article 98" Agreements with foreign governments. The terms of an Article 98 agreement, included within the Rome Statute itself, is essentially a promise by one country not to surrender another country's citizens to the International Criminal Court, or to a third country that would surrender that citizen to the ICC.

Exactly 100 countries have concluded Article 98 Agreements with the U.S. (By the way, the main proponent of these agreements has been - you guessed it - John Bolton.) For more information on Article 98's see here.

The bottom line is that countries which have not concluded an Article 98 agreement with the U.S. (and this includes all Western European countries) an activist judge could legally order the seizure of senior U.S. officials for surrender to the ICC. I doubt at this point that any foreign government would be foolish enough to comply with that judge's order, but there's alway s a first time, isn't there?

I believe it would be a first and last time, if anyone attempted it at all. Thanks to this Foreign Service officer for the clarification. It's another reminder why John Bolton needs confirmation, too.


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