Immunity of German diplomats in the United States

Published: 19 October 2017 Author: Stefan Talmon

German diplomats daughter stabs boy at school

On 5 September 2017 an incident in the Washington D.C. area attracted a fair bit of attention in the United States. The 12-year-old daughter of a member of the staff of the German  embassy in the United States stabbed a 13-year-old boy twice in the shoulder with scissors at the British Independent School in Georgetown. The boy had to be rushed off to hospital but the injuries were not life-threatening. A spokesperson for the Metropolitan Police Department declared:

“The suspect has been identified, however, because of her diplomatic status, there’s going to be no arrest at this time. Any questions regarding the diplomatic status can be referred to the State Department.”

There were also no criminal charges brought against the girl. A spokesperson for the German embassy stated that the embassy would conduct its own review. If it were discovered that the parents had contributed in any way to the stabbing, they could be subject to disciplinary action.

Under the Vienna Convention on Diplomatic Relation it is not only the members of the staff of the diplomatic mission who enjoy privileges and immunities but also the members of their family. The German diplomat’s daughter thus was not subject to any form of arrest or detention and enjoyed immunity from the criminal jurisdiction of the receiving State. The immunity could have been waived by the German Government which would have opened the way to prosecution in the United States. Such a waiver, however, was not forthcoming.

In principle, members of the staff of German diplomatic missions and their family members may be prosecuted in Germany for criminal offences committed in the receiving State. However, unlike in the case of criminal offences committed on German territory, there is no mandatory prosecution of crimes committed abroad. The public prosecution office may dispense with prosecuting criminal offences which have been committed outside Germany. In practice, German diplomats and their family members may escape any prosecution. In the present case, prosecution of the girl in Germany would have been barred by the fact children under the age of fourteen lack criminal capacity in German criminal law.

 

German diplomat beating his wife

In another incident, on 17 October 2017 an assistant attaché at the German Permanent Mission to the United Nations in New York assaulted his wife in their Manhattan apartment. The Manhattan district attorney’s office believed that there was “reasonable cause to charge [the diplomat] and sufficient evidence to convict him beyond a reasonable doubt” on charges of misdemeanour assault and second-degree harassment. However, the diplomat was neither arrested nor charged because of his diplomatic status. The district attorney requested the New York Mayor’s Office for International Affairs to “petition the State Department to seek a waiver of immunity to allow prosecution herein.” A request by the U.S. Department of State, however, was declined by the German government. Instead the diplomat was recalled to Germany. On 4 November 2016, a State Department spokesperson said:

“In the case of Mr. […], a German diplomat assigned to the German Mission to the United Nations, the U.S. Mission requested the government of Germany for a waiver of Mr. […] immunity from criminal prosecution in relation to the allegations of domestic abuse. The German Mission responded to the U.S. Mission earlier this week that the German government will not waive Mr. […] immunity and that both he and his wife will return to Germany. We have confirmed that Mr. […] has returned to Germany.”

Germany, like most other countries, as a rule, does not waive the immunity of its diplomats. In response to a formal request for a waiver of immunity, Germany will usually recall the diplomat concerned in order to avoid him or her being declared persona non grata.

Category: Diplomatic and consular relations

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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