Constitutional Solutions to the Problem of Diplomatic Crime and Immunity

No one is above the law. This principle has been a driving force throughout the great ideological experiment known as democracy. From childhood, we are told that people who commit crimes must answer for them. However, the simplistic nature of this notion fails to capture the whole truth of the nuanced system of international law. International law permits certain individuals to escape accountability for their crimes. For centuries, the principle of diplomatic immunity has enabled foreign diplomats to avoid prosecution for violations of the host country’s laws. The Vienna Convention on Diplomatic Relations, to which the United States is a party, has codified customary international law. The Vienna Convention grants diplomats, their families, and diplomatic property numerous protections. However, of all the protections granted by the Vienna Convention, none has caused more of a stir then Article 31. Article 31 provides that diplomats “shall enjoy immunity from the criminal jurisdiction of the receiving States.” There is little doubt that these core protections have existed for centuries. However, many argue that there is a need for wholesale changes to the law of diplomatic immunity to ensure justice is obtained for the victims of past diplomatic crimes and to deter diplomats from committing crimes in the future. In contrast, supporters of the status quo believe that diplomatic immunity ensures safe and open dialogue between nations so that they may work out their differences peacefully. As such, a debate as to the merits of continuing to provide foreign diplomats with immunity exists today. This Note will provide a constitutional method of analysis which can be used in order to solve the problem of unpunished diplomatic crime. Part II of this Note provides the historical context for diplomatic immunity, examines the existing regime of diplomatic immunity law, and provides evidence detailing the abuses of diplomatic immunity that have occurred in the past. Part III introduces numerous methods that have been suggested as ways to change the law of diplomatic immunity. The constitutionality of these methods is then analyzed. Part IV of the Note argues that the United States should refrain from taking unilateral action to deal with criminal diplomats despite the fact that doing so would be constitutional. Finally, Part V concludes that the best solution to the injustices of diplomatic crime that go unpunished as a result of the Vienna Convention is to grant jurisdiction over the matter to a special Diplomatic International Criminal Court. Allowing a Diplomatic International Criminal Court to prosecute accused diplomatic criminals is constitutional and would ensure a more just system of international law.

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