This is a follow-up to the article written last night,
South Sudan Embassy Just Got A Bad Rep, A Really Bad Rep. Assault Story in New York. A Discussion About Diplomatic Immunity.
There are recourses for the administration of justice. Just what exactly they are on a practical level, may take a moment or two to collect.
Here are some basic guidelines:
- First, document the incident the best possible.
- Second, seek an immunity waiver. (If the suspect is invoking diplomatic immunity to protect himself from continually being in the state of being arrested, that immunity can be taken away by the country that sent him here.) To obtain the waiver, the State Department may have to request it.
- If the waiver is denied, seek an expulsion of the referent diplomat. (Realize that repercussions may be dangerous to the suspect if he does get sent home, as in sent back to his home country or sending entity, and that it is diplomatic procedure for expulsion to occur in certain situations which are severe, cases less severe than this receives this treatment, and therefore, there might be a probability that the waiver will be granted, allowing the suspect applicable amount of flexibility after having no further immunity.)
What could happen, is an immunity waiver could be requested, if granted, suspect rearrested and, or a warrant for arrest or court appearance be issued, and he brought before US or local court such as the one attached to the police department which he was initially arrested, perhaps with some kind of monitoring given the diplomatic circumstance could occur, tried before such court, punitive actions established, the diplomat could then be terminated from his post, or in some order of that. Lawyers for all sides, prosecutors, NYPD, State Department, likely most of the pertinent parties involved, and swiftly reach a conclusion or best action.
The suspect cannot and does not have to be considered, let to be allowed to continue [being out there free to roam] scot-free with no punitive repercussion.
Detailed notes:There are some courses of actions that can be taken as set forth by the State Department, here are some excerpts with boldface to provide a general framework:
The term diplomatic immunity is
popularly,
and erroneously, understood to refer to special protections afforded all employees of foreign governments who are present in the United
States as official representatives of their home governments. (Per State Department's Guide to Law Enforcement on Diplomatic and Consular Immunity, 2018).
It should be emphasized that
even at its
highest level, diplomatic immunity does not
exempt diplomatic officers from the obligation
of conforming with national and local laws
and regulations.
Diplomatic immunity is not
intended to serve as a license for persons to
flout the law and purposely avoid liability for their actions. The purpose of these privileges
and immunities is not to benefit individuals but
to ensure the efficient and effective performance
of their official missions on behalf of their
governments. This is a crucial point for law
enforcement officers to understand in their
dealings with foreign diplomatic and consular
personnel. While police officers are obliged,
under international customary and treaty law,
to recognize the immunity of the envoy, they
must not ignore or condone the commission of
crimes. As is explained in greater detail below,
adherence to police procedures in such cases
is often essential in order for the United States
to formulate appropriate measures through
diplomatic channels to deal with such offenders.
Diplomatic agents enjoy the highest degree
of privileges and immunities. They enjoy
complete personal inviolability, which means
that they may not be handcuffed (except
in extraordinary circumstances), arrested,
or detained; and neither their property
(including vehicles) nor residences may be
entered or searched. Diplomatic agents also
enjoy complete immunity from the criminal
jurisdiction of the host country’s courts and
thus cannot be prosecuted no matter how
serious the offense unless their immunity is waived by the sending state (see the following
discussion).
Waivers
Always keep in mind that privileges and
immunities are extended from one country
to another in order to permit their respective
representatives to perform their duties
effectively; in a sense, it may be said the sending
countries “own” these privileges and immunities.
Therefore, while the individual enjoying such
immunities may not waive them, the sending
states can, and do. Police authorities should
never address the alleged commission of a crime
by a person enjoying full criminal immunity
with the belief that there is no possibility that a
prosecution could result. The U.S. Department
of State requests waivers of immunity in every
case where the prosecutor advises that, but for
the immunity, charges would be pursued. In
serious cases, if a waiver is refused, the offender
will be expelled from the United States and
the U.S. Department of State will request that
a warrant be issued and appropriate entries to
the National Crime Information Center (NCIC)
database be made by the responsible jurisdiction.
The seeking of waiver of immunity is handled
entirely via diplomatic channels, but effective
and informed police work becomes the basis of
the prosecutor’s decision and the foundation for
the U.S. Department of State’s waiver requests
and any subsequent prosecutions or expulsions.
Correct Understanding of Immunity
Frequently (and erroneously), immunity is
understood to mean pardon, total exoneration,
or total release from the responsibility to
comply with the law. In actuality, immunity
is simply a
legal barrier which precludes U.S.
courts from exercising jurisdiction over cases
against persons who enjoy it and in no way
releases such persons from the duty, embodied
in international law, to respect the laws and
regulations of the United States.
Waiver of Immunity
Diplomatic and consular immunity are
not intended to benefit the individual;
they are intended to benefit the mission of
the foreign government or international
organization. Thus an individual does
not “own” his or her immunity and it may
be waived, in whole or in part, by the
mission member’s government. The U.S.
Department of State will request a waiver
of immunity in every case in which the
prosecutor advises that he or she would
prosecute but for immunity. The U.S.
Department of State’s ability to secure such
waiver may depend to a large degree on
the strength (and documentation) of the
case at issue. Similarly, it is of little avail
for the U.S. Department of State to secure
a waiver of immunity in a particular case,
if the case has not been developed with
sufficient care and completeness to permit
a successful subsequent prosecution.
Proper documentation and reporting by
law enforcement authorities play a critical
role in both of these respects.
Expulsion Procedure
The criminal immunity that foreign
diplomatic and some consular personnel enjoy
protects them from the normal jurisdiction
of the courts with respect to alleged criminal
activity. However, in those instances in which
a person with immunity is believed to have
committed a serious offense (any felony or
crime of violence) and the sending country has
not acceded to the U.S. Department of State’s
request for a waiver of immunity, it is the
Department’s policy to require the departure
of that individual from the United States.
Requiring the departure of a person who
enjoys immunity is an extreme diplomatic
tool, and it is used only after the most careful
consideration to ensure that the United
States is not perceived as having acted in an
arbitrary, capricious, or prejudiced manner. A
high standard of police investigation, records,
and reporting in diplomatic incident cases is
therefore essential to permit the Department
to make the appropriate decision.
Posted by HCN.