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DEVI V. SILVA: Sanitizing Alleged War Criminals with Diplomatic Immunity

Written by  Vivianna Morales

667 F.3d 232 (2d Cir. 2012)

INTRODUCTION

Traditionally, foreign diplomats have enjoyed broad diplomatic immunity from suit in United States courts. Currently serving accredited diplomats are entitled to unqualified immunity from criminal jurisdiction in the United States based on the Diplomatic Relations Act of 1978, which gives effect to the Vienna Convention on Diplomatic Relations. The Vienna Convention on Diplomatic Relations, ratified by 186 countries and entered into force in the United States in 1972, grants broad diplomatic immunity with certain enumerated exceptions. The tradition of diplomatic immunity developed, as stated in the Preamble to the Vienna Convention, "not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States." Ratifying countries apply such privileges and immunities with the understanding that their own diplomats would be afforded the same protections.

However, the rationale for unqualified diplomatic immunities is not self-evident when a diplomatic agent is accused of committing a serious offense. While it has been argued that diplomatic agents, charged with fulfilling their respective countries’ international agenda, should not be burdened with process for crimes of minor importance, cases like Devi v. Silva raise the argument that when diplomats carry out war crimes, they are no longer acting within their function as a diplomat, and should therefore be deprived of the Vienna Convention’s protections.

In Devi v. Silva, the Federal District Court for the Southern District of New York decided the controversial issue of whether an accredited diplomat to the United Nations can avoid criminal process under the VCDR’s diplomatic immunity provisions, even if the lawsuit relates to activities committed prior to a diplomatic mission. The Devi court also decided the issue of whether there are any exceptions to diplomatic immunity when the acts alleged are prohibited by jus cogens norms of international law.

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