Yes, ambassadors can get away with murder

LONDON – On Monday, the Canadian government accused India’s high commissioner, the equivalent of an ambassador in Commonwealth countries, and five other diplomats of participating in a vast criminal conspiracy that used homicide and extortion to silence critics of India living in Canada.
Ordinarily, accusations of murder would be followed by arrests. But because the six accused were diplomats, they are immune from prosecution. Canada expelled them from the country but cannot take further action unless India waives diplomatic immunity — an extremely unlikely prospect.
The dispute between the two countries arises out of the June 2023 assassination of Hardeep Singh Nijjar, a prominent Sikh cleric, in Canada. The Canadian government said at the time that the Indian government orchestrated his killing. Nijjar, a self-proclaimed Sikh nationalist, was a prominent campaigner in the Khalistan movement, which calls for an independent Sikh nation on territory that includes the Indian state of Punjab.
The Indian government has vehemently denied that it was involved in Nijjar’s death and accused the Canadian government of pandering to the country’s large Sikh community for political gain.
It may seem shocking that diplomatic immunity could extend to murder. But in fact, that immunity is one of the oldest and most respected rules of international law.
What does diplomatic immunity mean?
Diplomatic immunity means pretty much exactly what it sounds like: Diplomats are immune from prosecution in their host countries, even for serious crimes such as murder.
Ambassadors and other diplomats are in principle still required to follow local laws. But if they do not, their host country cannot prosecute them. The only direct remedy is to declare the diplomats in question “persona non grata” and kick them out of the country.
The 1961 Vienna Convention on Diplomatic Relations states that “a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” That treaty is the modern codification of much, much older rules of international law.
“If you go back to ancient times, these are the first rules of international law that started to evolve, because they enabled states to speak to each other,” said Marko Milanovic, a professor of international law at Reading University in England. “In fact, this is the one rule of international law that all states completely agree on. There is simply no doubt about the importance of the rule, or its binding nature.”
Without that immunity, the reasoning goes, envoys would be at risk of being arrested, held hostage, or otherwise interfered with every time they travel to hostile states. So, establishing immunity is crucial to enabling diplomatic relations — even if that means accepting the risk that some crimes may go unpunished.
“Diplomatic missions in other states do an incredible amount of important work, and to do that work, they need to be able to enjoy immunity from domestic enforcement action,” Milanovic said.
It is also worth noting that not all countries have diplomatic relations, such as Iran and the United States, or Iran and Israel.
What happens if countries abuse immunity?
They do it all the time. It is very common, for example, for states to give their spies diplomatic positions within embassies. (This is often referred to as “official cover” or “diplomatic cover.”)
“All states do this, by the way,” Milanovic said. “Plenty of CIA agents operate abroad under the guise of cultural attachés or something like that.”
Diplomats also exploit immunity in more quotidian ways. As of 2022, for example, United Nations (UN) representatives and other diplomats owed over US$15 million in parking fines to New York City. And from 2002 to 2022, diplomatic missions and international organisations ran up a whopping total of 145.4 million pounds (almost $190 million) in unpaid tolls for driving in London’s congestion charge zone. (The top offender was the US Embassy, with 14.6 million pounds in outstanding charges.)
Murder allegations are extremely rare.
What can a country do if a diplomat commits a crime?
The host country’s main remedy is to declare the diplomat persona non grata (Latin for “unwelcome person”) and expel them.
In 1976, for example, several Scandinavian countries expelled North Korean diplomats for large-scale smuggling of cigarettes, drugs and alcohol, including bringing 323 pounds of hashish into Denmark using diplomatic pouches.
Immunity is for the protection of the country that sent the diplomat, not the individual diplomats themselves. So, the sending country does have the option of waiving that immunity. And in that situation, the diplomats can be prosecuted.
In 1997, for example, Georgia waived the immunity of Gueorgui Makharadze, a diplomat who killed a teenage girl and injured four other people in a drunken-driving case in Washington.
Canada said in a statement Monday that it had asked India to waive the six diplomats’ immunity so that they could participate in the investigation into Nijjar’s death, but India declined to do so, after which Canada expelled them.
India gave a different account: that it had removed the diplomats from Canada because “an atmosphere of extremism and violence” had put them in danger.
If the sending state does not waive immunity, that rules out legal consequences, but not diplomatic ones. “The main sort of game here is a reputational one, a naming and shaming one,” Milanovic said.
This article originally appeared in The New York Times.