2 FAM 230
IMMUNITIES OF FOREIGN REPRESENTATIVES AND OFFICIALS OF
INTERNATIONAL ORGANIZATIONS IN THE UNITED STATES
(CT:GEN-515; 07-06-2018)
(Office of Origin: L/DL)
2 FAM 231 GENERAL
2 FAM 231.1 Scope
(CT:GEN-435; 12-16-2014)
This subchapter sets forth Department of State policy and
procedures regarding the immunities of foreign representatives in the United
States, as well of officials of international organizations.
2 FAM 231.2 Responsibilities
(CT:GEN-268; 02-28-1991)
The Office of the Chief of Protocol (S/CPR) administers
this program, in consultation and coordination with other Department units as
specified in the sections below.
2 FAM 231.3 Authorities
(CT:GEN-335; 12-14-2006)
a. Crime of Violence Defined, 18 U.S.C. 16.
b. Diplomatic Relations Act, 22 U.S.C. 254a et seq.
(1978).
c. State Department Basic Authorities Act (1956), as
amended by Pub. L. 105-277.
d. International Organizations Immunities Act, 22
U.S.C. 288 et seq.
e. Foreign Missions Act, 22 U.S.C. 4301 et seq.
f. U.S. Constitution, Article II, Section 3.
g Vienna Convention on Consular Relations, 21 U.S.T.
77, T.I.A.S. 6820.
h. Vienna Convention on Diplomatic Relations, 23 U.S.T.
3227, T.I.A.S. 7502.
i. United Nations Headquarters Agreement, 17 U.S.T.
74, 20 U.S.T. 2810.
j. Convention on Privileges and Immunities of the
United Nations, 21 U.S.T. 1418.
k. Agreement on Privileges and Immunities of the
Organization of American States.
l. Organization of American States Headquarters
Agreement.
2 FAM 232 IMMUNITY OF FOREIGN
DIPLOMATIC AND CONSULAR PERSONNEL and of foreign representatives to and
officials of international organizations
2 FAM 232.1 Embassy Personnel
2 FAM 232.1-1 Diplomatic Agents
(CT:GEN-435; 12-16-2014)
a. Diplomatic agents enjoy the highest degree of
privileges and immunities. They enjoy complete personal inviolability. This
means that: they may not be arrested or detained; they are owed a special
measure of respect and protection; and neither their property nor residences
may be entered or searched. Diplomatic agents also enjoy complete immunity
from the criminal jurisdiction of the host State and thus cannot be prosecuted
absent a waiver no matter how serious the offense. Diplomatic agents, with
certain exceptions, also have immunity from civil suit. Finally, they enjoy
complete immunity from any requirement to provide testimony or other evidence
as witnesses, even when they themselves have been the victim of a crime.
b. Accredited family members forming part of the
household of diplomatic agents (recognized by the Department of State as such)
enjoy the same privileges and immunities as their sponsoring diplomatic agents.
c. Accredited family members working in the United
States do not, however, enjoy immunity from civil and administrative
jurisdiction for matters pertaining to their professional or commercial
activities.
2 FAM 232.1-2 Members of
Administrative and Technical Staff
(CT:GEN-435; 12-16-2014)
a. Members of the administrative and technical staff of
a diplomatic mission perform tasks critical to support the operation of the
mission. Accordingly, they enjoy immunities identical to those of diplomatic
agents in respect of personal inviolability, immunity from criminal jurisdiction,
and immunity from any requirement to provide evidence as witnesses. Their
immunity from civil jurisdiction, however, is less extensive than that of
diplomatic agents. Members of the administrative and technical staff enjoy
immunity from civil jurisdiction only in connection with the performance of
their official duties.
b. Like those of diplomatic agents, the recognized
family members of administrative and technical staff enjoy the same
inviolability and immunities from the host country's jurisdiction as their
sponsors. They thus have complete immunity from criminal jurisdiction of the
host State. However, since these family members perform no official duties,
they enjoy no immunity from civil jurisdiction.
2 FAM 232.1-3 Members of Service
Staff
(CT:GEN-435; 12-16-2014)
Members of the service staff of diplomatic missions
perform domestic service (basic support tasks) to the mission and are therefore
accorded more limited privileges and immunities than personnel in the other
categories. Service staff members enjoy only official acts immunity (see
further explanation below). They enjoy no personal inviolability or immunity
from providing evidence as witnesses. The families of service staff members
enjoy no privileges or immunities.
2 FAM 232.1-4 Nationals or
Permanent Residents of the United States
(CT:GEN-435; 12-16-2014)
The general rules set forth above assume that diplomatic
mission staff members are nationals only of the sending country or, rarely, of
some third country. Traditionally, governments are unwilling to surrender any
jurisdiction over their own nationals, and the modern treaty regime states
precise rules on this point. The United States, as a matter of policy, does
not normally accept the accreditation of its own nationals or lawful permanent
residents as diplomatic agents. But, were it to do so, such diplomatic agents
would enjoy inviolability and jurisdictional immunity only in connection with
the performance of official acts. In any event, family members of diplomatic agents
who are U.S. nationals enjoy no privileges or immunities. Administrative and
technical staff members, service staff, and family members of these persons
enjoy no privileges and immunities if they are U.S. nationals or have been
determined by the Department of State to be permanently resident in the United
States for the purposes of Article 38 of the Vienna Convention on Diplomatic
Relations and Article 71 of the Vienna Convention on Consular Relations. (The
group of individuals considered by the Department of State to be permanently
resident in the United States for Vienna Convention purposes is larger than,
but includes, lawful permanent residents.)
2 FAM 232.1-5 Special Bilateral
Agreements
(CT:GEN-435; 12-16-2014)
The immunities set forth above may differ for personnel
sent by a few foreign governments with which the United States has concluded
bilateral agreements that grant to members of their respective embassies the
privileges and immunities normally accorded only to diplomatic agents.
2 FAM 232.2 Career Consulate
Personnel
2 FAM 232.2-1 Consular Officers
and Employees
(CT:GEN-462; 09-23-2016)
a. Consular officers and employees in the United States
generally enjoy immunity only with respect to acts performed in the course of
their consular duties. (This is often described as official acts immunity.)
Generally, they are subject to process of local courts but if the sending state
asserts that the acts complained of were performed by consular staff in the
course of consular dues and the court agrees, it will determine that the legal
action (criminal or civil) against them cannot proceed.
b. Consular officers and employees may be called on to
give testimony in a civil, administrative, or criminal court case, provided
such testimony does not entail producing documents from their archives or
giving evidence relating to their official duties. U.S. authorities and courts
requesting such testimony must take all reasonable steps to avoid interference
with the performance of a consular officer's official duties. See VCCR Art. 44.2 ("The authority requiring
evidence of a consular officer shall avoid interference with the performance of
his functions. It may, when possible, take such evidence at his residence or
at the consular post or accept a statement from him in writing.")
c. A consular officer or employee is usually exempt
from military, naval, air, police, administrative, or jury service of every
kind, if they are:
not a U.S. citizen
not engaged in private occupation for gain
not normally a U.S. resident at the time of appointment to the
consulate
d. Consular officers are not subject to arrest or
detention pending trial, except in the case of a grave crime and pursuant to a
decision by a competent judicial authority. This means that consular officers,
but not consular employees, can be arrested only with a court warrant for a
felony offense.
2 FAM 232.2-2 Special Bilateral
Agreements
(CT:GEN-435; 12-16-2014)
The immunities set forth above for consular personnel may
differ for consular personnel sent by foreign states with which the United
States has concluded bilateral agreements that grant to consular staff members
of their respective consulates greater privileges and immunities than other
consular personnel.
2 FAM 232.3 Foreign Representatives
to and Officials of International Organizations
(CT:GEN-482; 11-03-2017)
a. Foreign government representatives to international
organizations in the United States are accredited to those organizations.
Generally, the immunities of such representatives to an international
organization, and those of their family members, are governed by the
International Organizations Immunities Act (IOIA) and an executive order issued
thereunder specific to that organization. The IOIA extends immunities to such
representatives to an international organization when that organization has
been duly designated by the President as entitled to the immunities provided by
that Act. (A list of those organizations is available at 9 FAM
402.3-7(M), Designated International Organizations)
Under the IOIA, representatives of foreign governments to designated
organizations are immune from suit and legal process relating to acts performed
by them in their official capacity and falling within their functions as such
representatives. In exceptional cases, however, immunities are granted to such
representatives and their families by treaty. Such treaties include the
Convention on Privileges and Immunities of the United Nations, the United
Nations Headquarters Agreement, and the Agreement between the United States and
the Organization of American States on Privileges and Immunities. The Bureau
of International Organization Affairs (IO), S/CPR, and the Office of the Legal
Adviser must determine the level of immunities enjoyed by such foreign
representatives.
b. Generally, the immunities of officers and employees
of an international organization, and those of their family members, are
governed by the IOIA and an executive order issued thereunder specific to that
organization. The IOIA extends immunities to such officers and employees of an
international organization when that organization has been duly designated by
the President as entitled to the immunities provided by that Act. Under the
IOIA, officers and employees of designated organizations are immune from suit
and legal process relating to acts performed by them in their official capacity
and falling within their functions as officers or employees. In exceptional
cases, however, immunities are granted to such officers and employees, and
their families by treaty. Such treaties include the Convention on Privileges
and Immunities of the United Nations and the Organization of American States
Headquarters Agreement. IO, S/CPR, and L must determine the level of
immunities enjoyed by such officers and employees.
2 FAM 232.4 Accreditation and
Related Documentation of Foreign Government Personnel Assigned to Diplomatic or
Consular duty in the United States
(CT:GEN-462; 09-23-2016)
a. The Office of the Chief of Protocol (S/CPR) is the
only Department of State office authorized to accept the accreditation of
foreign bilateral Chiefs of Mission, Delegation Heads, Charg d'Affaires and
their dependents in the United States who, as a matter of international law,
enjoy immunity from U.S. jurisdiction. S/CPR issues appropriate identification
cards to such persons, when they accept the accreditation of such persons to
the United States.
b. The Office of Foreign Missions (M/OFM) is the only
Department of State entity authorized to accept the accreditation of all other
foreign representatives in the United States (with the exception USUN's
responsibilities with regard to those individuals who are accredited by the
United Nations at the Permanent Missions and Observer Offices, to the United
Nations, and to the United Nations Secretariat and related Organs and
Agencies). As appropriate, M/OFM issues identification cards to such persons
subsequent to the accreditation or acceptance of notification of such
individuals.
c. S/CPR and M/OFM must review records maintained
under 2 FAM
234.3 before accepting any alien notified to it by the sending state.
Even if already in possession of a visa, if probable cause exists to believe
the alien committed a serious criminal offense (as defined in 2 FAM 233.3(b))
in the United States, then the Department must deny the request to accredit
said individual as a member of a diplomatic or consular mission in the United
States entitled to some level of diplomatic or consular immunity.
d. Foreign government representatives to an
international organization are accredited to that international organization,
and not to the United States. USUN issues appropriate identification cards to
U.N.-accredited persons. M/OFM issues appropriate identification cards to persons
enjoying immunity who are accredited to other international organizations.
2 FAM 232.5 Waiver of Immunity
(CT:GEN-435; 12-16-2014)
a. Department of State general policy is to request a
waiver of immunity from criminal jurisdiction in all criminal cases involving
foreign personnel with such immunity. The purpose is to permit U.S. law to
take its course in the investigation and prosecution of all aliens. Seek such
waivers in consultation and coordination with L.
b. Exceptions to this general policy may be made where
overriding foreign relations, national security, or humanitarian concerns
justify such an exception. The approval of the Secretary of State, Deputy
Secretary of State, Under Secretary of State for Political Affairs, or Under
Secretary of State for Management is required for any exception. Such
humanitarian concerns could be presented, for example, where the persons
continued presence in the United States is deemed to be dangerous.
2 FAM 232.6 Heads of State, Heads
of Government, and Foreign Ministers
(CT:GEN-435; 12-16-2014)
a. Foreign heads of state, heads of government, and
foreign ministers enjoy immunity from criminal and civil jurisdiction during
their terms of office.
b. In the event of any request for or claim of immunity
on the basis of status as head of state, head of government, or foreign
minister, or part of their traveling party, L/DL should be immediately
contacted.
c. In the event of any attempt to serve criminal or
civil process on a head of state, head of government, or foreign minister, or
part of their traveling party, DS should immediately contact L.
2 FAM 233 CRIMINAL AND CIVIL LIABILITY
2 FAM 233.1 General Policy
(CT:GEN-462; 09-23-2016)
Department policy is to formulate a comprehensive
program for enforcement of limitations on diplomatic immunities and to control
the abuse of such immunities in a manner that is both effective and consistent
with international law. The Department's publication titled "Diplomatic
and Consular Immunity -- Guidance for Law Enforcement and Judicial
Authorities" provides detailed information and guidance concerning this
topic. This publication is available at Diplomatic and Consular Immunity --
Guidance for Law Enforcement and Judicial Authorities link.
2 FAM 233.2 Background
(CT:GEN-462; 09-23-2016)
a. Under international law and practice, persons
enjoying immunity from the jurisdiction of a receiving states laws nonetheless
have a duty to respect those laws. Diplomatic immunity is based upon the
principle that members of diplomatic, or comparable, missions or officials of
international organizations enjoying such immunity need to pursue their
official duties free from harassment and possible intimidation and without
impediment to their performance of those duties. Immunity is not a
license for misconduct. It is a doctrine intended to benefit the sending
state or international organization, not individuals. Consequently, the
U.S. Government expects chiefs of diplomatic missions, their counterparts in
missions to international organizations, and the heads of international
organizations headquartered or maintaining offices in this country, to educate
their staff members, as well as family members enjoying derivative immunity, on
their duty to respect U.S. laws and regulations. The U.S. Government also
expects all missions and international organizations to consider in good faith
all requests made for the waiver of immunity, and to take appropriate action
against those who may abuse their immunity. In the end, the United States
holds the chief of mission and the sending state or international organization
responsible for the conduct of people sent to the United States as diplomatic
representatives or other persons entitled to immunity.
b. The Department of State also recognizes that, by
accepting foreign mission members who enjoy immunity from local jurisdiction,
the Department has a responsibility to U.S. law enforcement authorities and the
public to protect against abuse of that immunity. Where abuse occurs, it
is Department policy to take prompt and effective action against the offender,
consistent with U.S. international obligations, and, where appropriate, the
offender's mission or government. Determinations whether a foreign
official is entitled to immunity can be highly fact dependent and must be made
as directed by the facts of the situation by S/CPR, USUN, M/OFM, as
appropriate, in consultation with L, and when applicable the American Institute
in Taiwan (AIT).
2 FAM 233.3 Criminal Violations
(CT:GEN-462; 09-23-2016)
a. Department policy with respect to alleged criminal
violations by persons with immunity from criminal jurisdiction is:
(1) To encourage law enforcement authorities to pursue
vigorously the investigations, to prepare cases carefully and completely, and to
document properly each incident so that charges may be pursued as far as
possible in the U.S. judicial system;
(2) If a prosecutor informs the Department that,
absent immunity, he would prosecute, to request the sending state or
international organization in all cases to waive immunity so that all
allegations may be fully adjudicated;
(3) In the absence of waiver (or exceptionally even
with a waiver), in cases of serious criminal offenses, as defined in subsection
b. immediately below, or of recurrent lesser offenses, to require the alleged
offender to leave the United States. This policy applies with respect to
first offenses of reckless driving or driving while intoxicated or under the
influence of alcohol or drugs, only where such offenses result in death or
serious personal injury to another person, or significant property damage.
Also, in the case of offenses by family members, to require departure of the
mission member from whom the family member's immunity derives, as necessary;
(4) In all cases involving injury to other persons or
damage to property, to support and assist efforts of the aggrieved to obtain
prompt restitution from the individual offenders or their government; and
(5) To prevent the return to the United States of
alleged offenders who were required to leave or who preemptively left this
country because of alleged criminal conduct unless they submit fully to the
jurisdiction of the U.S. court with jurisdiction over the offense.
b. For the purposes of this section, serious criminal
offense is defined as any:
(1) felony under federal, state, or local law;
(2) Federal, state, or local offense punishable by a
term of imprisonment of more than 1 year;
(3) Crime of violence, as defined in 18 U.S.C. 16;
|
Explanatory note: 18 U.S.C. 16 provides:
The term "crime of violence" means--
(a) an offense that has as an element the use,
attempted use, or threatened use, of physical force against the person or
property of another, or
(b) any other offense that is a felony and that, by
its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.
|
(4) a crime of reckless driving or of driving while
intoxicated or under the influence of alcohol or drugs.
c. Each departure from this policy requires the
written approval of the Secretary of State, Deputy Secretary of State, Under
Secretary of State for Political Affairs, or Under Secretary of State for
Management.
2 FAM 233.4 Communication with
Chiefs of Mission and Others
(CT:GEN-268; 02-28-1991)
Department of State personnel responsible for the
implementation and enforcement of the program described in 2 FAM 233.1
should be familiar with the information about the program communicated to
Chiefs of Diplomatic Missions in the United States (and comparable
officers). The communication was by a circular Diplomatic Note of
November 15, 1989, and the text of that note is 2 FAM Exhibit
233.4.
2 FAM 233.5 Cooperation with Law
Enforcement Authorities
(CT:GEN-515; 07-06-2018)
a. To enhance the success of U.S. authorities in
identifying alleged offenders, the Department will cooperate with Federal and
local law enforcement authorities. Among other steps, the Department of
State will:
(1) Continue educating and informing law enforcement
authorities of the relevant principles of international law; and
(2) Encourage law enforcement personnel in particular
to study carefully and consult with the Department on any claim of immunity, so
as not to extend immunity from prosecution or other judicial process to persons
not entitled to such treatment.
b. The Department's general policy with regard to
non-resident aliens whose presence in the United States may generate foreign
policy interest but who do not enjoy immunity from criminal jurisdiction is to
let law enforcement take its course, just as for any other person subject to
U.S. jurisdiction, and therefore no Department action would be warranted. In
the rare case involving such individuals which presents significant foreign
policy concerns, communication of such concerns by the Department of State to
law enforcement personnel may be justified. Department personnel are prohibited
from communicating such concerns without properly obtained authority at the
appropriate Department level (see 2 FAM 234).
2 FAM 233.6 Civil Liability
(CT:GEN-462; 09-23-2016)
The Department of State is also concerned about any abuse
of immunity from civil jurisdiction by missions, their members, and members of
their families. S/CPR, OFM, and USUN (in the case of U.N. personnel or
personnel assigned to a foreign mission to the U.N.) are the Department offices
that ensure proper practices among the foreign mission community in paying just
debts and discharging other just civil liabilities. Of particular concern
is that M/OFM, which issues drivers licenses and vehicle registrations to
certain persons with immunities, monitors and ensures compliance by that
community with the liability insurance requirements of section 204A of the
State Department Basic Authorities Act of 1956, as amended (22 U.S.C. 4304a).
2 FAM 234 DEPARTMENT ACTION
2 FAM 234.1 Criminal Cases
(CT:GEN-462; 09-23-2016)
Communications or actions by the Department are generally
sought by law enforcement authorities, by courts, by or on behalf of
individuals, by foreign governments, or by affected private citizens in two
categories of criminal cases:
(1) Those involving persons who, by virtue of
accreditation to the United States or to an international organization, or as
personnel of an international organization, or family members of such
personnel, enjoy immunity from criminal jurisdiction in the United
States; and
(2) Those involving all other aliens, resident and
non-resident.
2 FAM 234.1-1 Certification of
Immunity
(CT:GEN-462; 09-23-2016)
a. S/CPR, M/OFM, and USUN for U.N. personnel and
personnel assigned to a foreign mission to the U.N., maintain records of
individuals accorded privileges, exemptions, and immunities under United States
law.
b. In any case in which an employing mission,
international organization or United States law enforcement authority requests
from the Department of State a certificate of immunity in a criminal or civil
context pertaining to accredited personnel, S/CPR (for bilateral Chiefs of
Mission, Heads of Delegation, Chargs daffaires, Deputy Chiefs of Mission, and
their dependents) or M/OFM (for all others aside from those reserved for USUN)
will provide a certification setting forth the immunities enjoyed by the person
at issue. (In certain instances OFM also provides informal certifications
concerning immunities from criminal or civil process relating to driving
offenses.)
c. In cases involving U.N. personnel, USUN may advise
the employing mission, international organization or law enforcement authorities
whether the person concerned has immunity of any kind and the extent of that
immunity.
d. In each case involving allegations of criminal
misconduct, L in coordination with S/CPR, M/OFM, DS, and USUN will make every
effort to communicate to appropriate law enforcement authorities those
investigative measures which are consistent with the immunity enjoyed by the
individual and his mission (see 2 FAM Exhibit
233.4). S/CPR, M/OFM, or USUN, as appropriate, will request that the
authorities inform it in writing of the disposition of each case.
2 FAM 234.1-2 Other Action
(CT:GEN-462; 09-23-2016)
a. Under U.S. law, aliens are generally entitled to the
same rights and subject to the same responsibilities as U.S. citizens where
litigation, both civil and criminal, is concerned. U.S. policy is that
U.S. law should take its course in the investigation and prosecution of all
aliens, to the extent consistent with international law. S/CPR, M/OFM,
and USUN, as appropriate, may certify immunity and related information as
described in 2
FAM 234.
b. When an alien who enjoys no immunity from arrest or
prosecution is charged in the United States with a serious crime, and the case
raises significant foreign policy concerns, it may be advisable for the
Department to communicate those concerns to law enforcement personnel. The
Secretary of State, Deputy Secretary of State, Under Secretary of State for
Political Affairs, or Under Secretary of State for Management must approve
communications with law enforcement personnel if the proposed Department
communication seeks to influence the disposition of the case. Because of the
inherently sensitive nature of criminal prosecutions, the technical issues
likely to arise, the possible need to coordinate with the Department of Justice,
and the need for consistency, requests for S, D, P, or M approval must be
cleared within the Department as appropriate, including in all cases with L.
Nothing in this section prevents communication between appropriate working
level offices in the Department and their counterpart law enforcement officials
with regard to matters outside the cases considered in this section.
2 FAM 234.2 Civil Cases
(CT:GEN-462; 09-23-2016)
a. The Department regional bureaus and IO should notify
S/CPR, USUN, or M/OFM, as appropriate, and L in all instances, of any reported
situation involving apparent failure of a foreign diplomatic or consular
community member to meet their financial obligations. Upon request, the
regional bureaus and IO will assist S/CPR, USUN, and OFM in addressing such
problem cases, in consultation and coordination with L.
b. The Department may intervene, through S/CPR, M/OFM,
and USUN, and with the assistance of L, where the complainant notifies the
Department of the matter in writing, and can produce satisfactory evidence
that:
(1) A debt or civil liability is owed;
(2) The matter was brought to the attention of the
mission member concerned and/or to the head of the mission, without resolution;
and
(3) Immunity would preclude judicial or administrative
action.
c. Finally, if outstanding debts are not settled
within a reasonable period (not exceeding six months), continued reliance on
immunity to evade a debt may affect a mission member's continued acceptability
in the United States, to the extent consistent with U.S. international
obligations. The departure of a mission member without settlement of
outstanding debts may affect the Department's ability to accept a replacement
and will also result in the United States notifying potential creditors to the
extent practicable of all appropriate facts necessary for their self-protection.
2 FAM 234.3 Records
(CT:GEN-462; 09-23-2016)
a. S/CPR, M/OFM and USUN establish and maintain
complete records of each reported case that comes to its attention in which a
person with immunity from criminal jurisdiction in the United States has been
accused of a crime in the United States. The record includes whatever
action S/CPR, M/OFM, or any other Department office has taken in that case.
Such records are shared with the Visa Office (in the Bureau of Consular
Affairs) as appropriate to prevent the return to the United States of alleged
offenders who were required to leave or who preemptively left this country as a
result of alleged criminal conduct.
b. S/CPR and M/OFM also maintains records of all
outstanding obligations of a person with immunity from civil jurisdiction that
comes to its attention.
c. IO and USUN, each regional bureau, DS, and AIT/W
will provide S/CPR, M/OFM, and L reports on all cases which come to their
attention.
2 FAM 235 PROTECTION OF FOREIGN
DIPLOMATIC PREMISES
2 FAM 235.1 Responsibility
(CT:GEN-435; 12-16-2014)
The Bureau of Diplomatic Security's Office of Protection
(Protective Liaison Division-- DS/DO/P/PL), which maintains liaison with the
Washington, D.C., Metropolitan Police Department and the Uniformed Division of
the Secret Service, coordinates all matters relating to the protection of
foreign diplomatic premises and their officials. Pursuant to United
Nations General Assembly resolution 2819 of December 15, 1971, the United
States as host country ensures the protection and security of the United
Nations and U.N. Missions and their personnel in New York City. USUN
relies on the Bureau of Diplomatic Security, working with the New York City
Police Department, to do so.
2 FAM 235.2 Procedures
(CT:GEN-435; 12-16-2014)
a. All Department officers contacted in regard to these
matters by any diplomatic mission must immediately inform the Protective
Liaison Division (DS/DO/P/PL).
b. After coordinating with S/CPR or IO and USUN, OFM,
L, and the regional bureau concerned, as necessary, DS/DO/P/PL ensures on
behalf of the Department that all necessary action is taken.
2 FAM 236 THROUGH 239 UNASSIGNED
2 FAM Exhibit 233.4
TEXT OF 11-15-89 CIRCULAR DIPLOMATIC NOTE TO CHIEFS OF DIPLOMATIC MISSIONS IN
THE UNITED STATES
(CT:GEN-268; 02-28-1991)
The Secretary of State presents his compliments to Their
Excellencies and Messieurs and Mesdames the Chiefs of Mission and has the honor
to refer to previous diplomatic notes from the Department of State on the
subject of immunity from the jurisdiction of the United States.
Despite cooperative measures among the Department of
State, United States law enforcement authorities, and the addressee missions,
there continues to exist a relatively small, but unacceptable, number of
members of the foreign diplomatic community in the United States who abuse
their immunity from criminal jurisdiction under international law. The
Department has taken a number of reaffirming measures, particularly since
enactment of the Diplomatic Relations Act of 1978 and the Foreign Missions Act
of 1982, to ensure that the activities of the foreign diplomatic community and
other persons who have immunity from criminal jurisdiction by virtue of their
official status as representatives of a foreign government or international
organization conform with U.S. and applicable provisions of international law.
Nonetheless, the Department of State, sharing the concern of the United States
Congress and the public at large, has devised a strengthened, comprehensive
program for enforcement of an appropriate system for regulating diplomatic
immunities, in a manner that is both effective and consistent with
international law.
Under international law and practice persons extended
immunity from the jurisdiction of host country laws nonetheless are obligated
to respect those laws. As all nations recognize, diplomatic immunity is based
upon the principle that duly accredited members of diplomatic missions must be
able to pursue their official duties free from harassment and possible
intimidation and without impediment to their performance of those duties.
However, immunity is not a license for misconduct. It is in fact a doctrine
intended to benefit the functioning of the mission, not to personally benefit
its individual members. Consequently, the Government of the United States in
the first instance looks to chiefs of diplomatic missions, to their
counterparts in missions to international organizations, and to the heads of
international organizations headquartered or maintaining offices in the United
States to counsel members of their staffs, as well as family members who enjoy
derivative immunity, on their duty to respect the laws and regulations of this
country. Ultimately, the United States will hold the Chief of Mission and the
sending government responsible for the conduct of persons sent to the United
States as diplomatic representatives or of others entitled to immunity. The
Department also expects all missions to consider in good faith requests made
for waivers of immunity and, in addition, to take appropriate action against
those who may abuse their immunity.
The Department of State reiterates that criminal
violations will not be tolerated by the United States Government or the
community at large. While the Department will continue to take necessary
action as required by international law to safeguard and preserve the immunity
of persons allegedly involved in criminal behavior, the Department wishes to
communicate the corrective measures consistent with international law that are
being taken in cases involving serious criminal conduct, in particular crimes
of violence, recurrent offenses of a less serious nature, or other egregious abuses
of immunity.
In this regard, the Department wishes to emphasize the
following points:
1. The Chiefs of Mission must ensure that the members
of their missions and eligible members of their families apply for and receive
identity cards issued by the Department of State. Those cards contain not only
the official identification of the person but also a statement of the extent of
the bearer's immunity. Only persons properly notified to and accepted by the
United States Government can be issued documents stating their immunity, and
have their status confirmed through the Office of Protocol of the Department of
State. In order to ensure that proper notification is given of termination of
mission members upon departure, except for those missions subject to a
bilateral ceiling restricting the number of official employees at the mission,
henceforth notification of new personnel to be accredited must include either
information on which person is being replaced at the mission and the date of
termination of the predecessor, or a certification that the new person will
occupy a new position. Until such time as a revised form reflecting these
changes in the regulations is available, such information should be included at
the bottom of the appropriate notification form. An example is attached.
2. A diplomatic agent possessing proper
identification may not be arrested or detained. It is emphasized, however,
that the United States has a duty to protect the safety and welfare of the
public, including other diplomats, and to take reasonable steps to prevent the
commission of crimes. United States law enforcement authorities therefore have
been instructed that, in circumstances where public safety is in imminent
danger or it is apparent that a serious crime may otherwise be committed,
police authorities may intervene to the extent necessary to halt such activity,
even in cases involving diplomatic agents. This includes the power of the
police to defend themselves and others from personal harm. At the same time,
law enforcement authorities will also take any necessary action to ensure that
a diplomatic agent does not bring harm to himself. Mission personnel having a
lesser degree of immunity, of course, are also subject to these measures, as
well as any other measures consistent with their more limited immunity.
3. Persons with immunity from criminal jurisdiction,
consistent with international law, are subject to criminal investigation to the
same extent as any other person residing in the United States, as may be
required. Chiefs of Mission are requested to instruct members of their
missions, and the family members of those members, to cooperate fully with such
investigations. United States law enforcement authorities have been instructed
to pursue vigorously investigations, to prepare cases carefully and completely,
and to document properly each incident of alleged commission of a crime. These
steps are required so that charges against alleged offenders may be pursued as
far as possible in the United States judicial system consistent with their
immunity. These steps are also necessary to ensure that investigative reports
provide sufficient information to initiate diplomatic measures against an
alleged offender. Such steps may be important also to protect foreign mission
personnel alleged to have been involved in criminal misconduct, as
investigation of allegations of wrongdoing will determine whether or not they
are substantiated.
4. As a matter of general policy, in all cases
involving allegations of criminal misconduct, the Department requests the
sending government to waive immunity so that allegations of criminal or other
misconduct may be adjudicated fully and resolved pursuant to U.S. law. Where a
waiver of immunity is refused, the United States Government normally will
require in the case of serious offenses that the alleged offender depart the
country, including, where necessary, in the case of such serious offenses by
family members, departure of the mission member from whom the family member's
immunity derives. Even where a waiver of immunity has been granted, the
Department retains discretion to require the departure of the alleged offender
where necessary. For the guidance of missions, the Department considers
serious offenses to include: (1) any felony, (2) any crime of violence, such
as an attack with a firearm or dangerous weapon, or (3) driving under the
influence of alcohol or drugs, which causes injury to persons. In addition,
the Department is particularly concerned about those situations where there is
a pattern of recurrent, though less serious, offenses, especially those
involving drugs or driving without insurance.
5. The Department of State further, as a matter of
policy, seeks to prevent the return to the United States of persons entitled to
immunity who, as alleged offenders, have been required to leave this country.
The Department will not accept such persons in representative capacities
thereafter which would establish any degree of immunity from criminal
jurisdiction in their behalf.
6. In all cases involving injury to persons or damage
to property, the Department of State intends to pursue vigorously the interests
of the aggrieved parties in obtaining prompt restitution by individual
offenders or from their governments.
7. The Department wishes to remind the missions that
in any case involving criminal activity no immunity exists against the arrest
and prosecution of a person formerly entitled to privileges and immunities who
returns to the United States following the termination of his or her official
duties, unless it can be proved that the crime related to the exercise of
official functions. That defense is adjudicated by the courts. The Department
recognizes that the threat of prosecution may serve, as a practical matter, to
prevent individuals who commit crimes while in privileged status from returning
to the United States. To ensure that such individuals do not return without
appropriate review by United States authorities, the Department reaffirms its
requirement that the sending government forward the passport of the alleged
offender (and of family members in appropriate cases) to the Department before
he or she departs the United States so that the visa may be revoked and the
form I-94 returned to the Immigration and Naturalization Service. Should the
alleged offender leave the United States before the visa is canceled, the
Department reserves the right to refuse a replacement for the offender (or his
or her principal in the case of a crime committed by a dependent) on the
mission staff, to the extent permitted under international obligations, until
the outstanding visa is revoked.
8. The Department of State has measures already in
place to prevent persons, for whom there is reason to believe that they have
committed a serious criminal offense, from reentering the United States in a
diplomatic or consular capacity after having been required to leave this
country. These measures include entering data on the alleged offender in the
Department's Automated Visa Lookout System. This information is shared with
the Immigration and Naturalization Service and used by the INS at ports of
entry into the United States. Also, as already noted, the Department requires
cancellation of existing visas when a foreign diplomat leaves the United States
as a result of alleged commission of a criminal offense.
9. In addition, the Department of State is seeking
legislation which would add a new category of ineligibility for visas and for
admission to the United States. This new provision would exclude from the
United States persons for whom there is reason to believe that he or she
committed a serious criminal offense in the United States, for whom immunity
from criminal jurisdiction was exercised, and who left the United States as a
con-sequence, thus preventing adjudication of guilt or innocence in United
States courts.
10. The Department of State defines "member of the
family" for purposes of immunity from criminal jurisdiction as a person
who is in one of the following relationships to an official representative of a
foreign government or another person who has immunity from criminal
jurisdiction by virtue of his or her official status:
(A) the spouse of such representative or other person
and his or her unmarried children under 21 years of age, who are not members of
some other household, and who reside exclusively in the principal's household,
if the spouse or children are not nationals (in the case of a diplomatic agent)
or (in the case of other representatives) nationals or permanent residents of
the United States;
(B) the unmarried children of such representative or
other person who are under 23 years of age and attending an institution of
higher education on a full-time basis, if they are not nationals (in the case
of a diplomatic agent) or (in the case of other representatives) nationals or
permanent residents of the United States; and
(C) under exceptional circumstances and with the express
advance approval of the Department of State, other persons who are not members
of some other household, who reside exclusively in the principal's household,
and who are recognized by the sending State as members of the family forming
part of the household.
The Department of State also takes this opportunity to
remind the Chiefs of Mission of previous circular notes on the policies and
procedures affecting their missions and staff, particularly the notes of
September 21, 1987, and March 21, 1984, regarding the conduct of diplomatic
agents in the United States; the notes of April 1, 1986, and May 8, 1985,
regarding motor vehicle requirements; the notes of August 17, 1987, and
September 9, 1985, regarding traffic fines; the note of July 3, 1985, regarding
operation of motor vehicles while under the influence of drugs or alcohol; the
note of July 5, 1984, regarding registration of motor vehicles; the note of
March 17, 1987, regarding liability insurance; the notes of December 19, 1988,
May 21, 1986, and February 3, 1983, concerning the possession and carrying of
firearms; and the note of October 24, 1986, regarding identification cards and
updating of such cards. (Copies of these notes are enclosed for the
convenience of the missions.)
The Department of State reminds the Chiefs of Mission
that, as in the case of personal immunity of individuals, the inviolability of
diplomatic and consular pouches is based upon the need of missions to have free
communication with their governments and missions in other countries or
elsewhere in the United States. The Department will not tolerate abuses of
this inviolability to bring into the United States or transport within the
United States illegal substances, such as narcotics, explosives, firearms and
other material illegal under United States law and regulation. The Government
of the United States will take all steps consistent with international law to
detect, prevent, and punish such abuse.
In conclusion, the Department of State urges the Chiefs of
Mission to ensure that members of their missions, and their dependents, pay
their just debts, and that all necessary and appropriate steps are taken by
waiver of immunity, insurance, or otherwise to discharge obligations arising
from the presence and activities of the missions, their members and
dependents. The Department strongly recommends that the missions and their
members obtain liability insurance, in addition to the level of motor vehicle
insurance already required by the U.S. Government, to cover property losses or
injury arising out of their activities.
Where the Department learns that missions or their members
have failed to discharge legitimate debts within a reasonable time, or are
otherwise financially liable for activities undertaken in the United States,
upon request, the Department will intervene to secure payment. In particular,
it is the Department's practice to assist in resolving outstanding debts of
mission members where the complainant notifies the Department of the matter in
writing, and can produce satisfactory evidence 1) that a debt or civil
liability is owed, 2) that the matter has been brought to the attention of the
mission member concerned and to the head of the mission, without resolution for
an unreasonable period (pending without resolution for six months or more), and
3) that immunity would preclude judicial or administrative action. The
Department must advise the Chiefs of Mission that reliance on immunity to evade
a financial obligation under law could call into question a mission member's
continued acceptability in the United States. In addition, the departure of a
mission member without settling outstanding financial liabilities could affect
the Department's willingness to accept a replacement, and could cause the United
States to advise prospective creditors of the financial unreliability of the
mission or its members.
The Department will closely study the manner in which the
respective missions discharge this responsibility and will take those
diplomatic measures which will be both effective and consistent with
international law.
Enclosures:
1. Circular Notes of September 21, 1987, March 21,
1984, April 1, 1986, May 8, 1985, August 17, 1987, September 9, 1985, July 3,
1985, July 5, 1984, March 17, 1987, December 19, 1988, May 21, 1986, February
3, 1983, and October 24, 1986.
2. Examples of Notification Forms.
Department of State,
Washington, November 15, 1989.