Can a country overrule diplomatic immunity?
Below is the recommendation and reference answer for question "Can a country overrule diplomatic immunity?" It was collected and sorted by the editor of this site but not sure the answer is entirely accurate.
I suppose so, but you would be best off securing country 1's permission first.
Well, they could, but it would lead to an "international incident" and some sort of repercussion from country 1.
Usually the diplomat is recalled home and faces an equivalent punishment, depending on the crime.
PROBABLY CAN BUT IT IS NOT A SMART IDEA TO DO THAT
It theoretically can, but never does it seems these ruling elite are mostly all cut from the same cloth. Mary.
The very rules that permit distant places diplomats to brush aside our rules are the comparable rules that guard our ambassadors & diplomats from the absurd rules in distant places worldwide places such because of fact the separation of the sexes in worldwide places like Saudi Arabia or the donning of the veil, and so on.
Country 2 can always do that, of course. But there would be several problems arising from it:
1) Country 1 would immediately arrest every member of Country 2's diplomatic mission who was on record in Country 1 as committing crimes. Since all nations' diplomatically protected staff routinely commit at least traffic crimes, that would be a LOT of arrests.
2) Likely the end of tit-for-tat (because Country 2 would then do the same) would be each nation jerking its ambassador and possible closing their embassies. Unlikely? Well, war could ensue if the nations share a border.
3) Every nation in the world with an embassy in Country 2 would bristle up and make strenuous demands upon Country 2 vis-a-vis any thinking they had about the rest of the diplomats in their land. VERY strenuous and pointed demands.
Doing this would violate the most basic, absolutely most basic principle of diplomacy: that the properly accredited diplomat is inviolate. Not to be harmed, harassed, or in any way limited in his performance of diplomacy. If you can't stand him being there anymore (because a spy or two got caught, because his wife just published a book detailing years of private slurs by him, because he was caught bloody-handed raping the body of a dead 3yo boy, whatever it might be), you "expel" him.
And that is IT. Nothing more extreme. Even during WWII and the Cold War, no nation violated this principle.
Now, that all said, there is one further reason that Country 2 should not think of doing something so "sacrilegious":
Although Country 2 arresting the diplomat and trying him is just not done, there is still justice available. Just because the diplomat had diplomatic immunity when he committed the crime, doesn't mean he cannot be arrested, tried, convicted, and punished by Country 2. They simply have to present their evidence to Country 1's proper authorities and ask for his diplomatic immunity to be removed. The more heinous the crime, and/or the more embarrassing it was to Country 1, the more likely Country 1 will grant the request. It doesn't have to, but it likely will if the crime is more serious than, say, running a burglary ring with the stolen goods going into the "diplomatic pouch" for sale outside Country 1. That murdering rapist I posited earlier would absolutely be tossed to Country 2's wolves as not even being Country 1's president's brother is likely to be enough to keep him protected.
There are some limits. Canada, for instance, would never give up a diplomat to the US if his crime was one that could get the death penalty unless the US specifically took the death penalty off the table. And if the situation between the nations were quite strained, there might be allegations that the charges are false or perhaps inflated and that would have the obvious possible refusal.
A further thought, and it's only a thought, is that some nations might still be unable to try him. The US has built into our Constitution an "ex post facto" provision: no one can be a criminal because something is made a crime AFTER he did the act. How that might apply is that the diplomat had immunity so under the law, what he did might not be a crime. I'm pretty sure it's looked at differently, that it's still a crime and that the diplomat knew, when he committed it, that his immunity could be revoked, so ex post facto would not apply. But... who knows?
Also, as Bflowing says, another possible result that Country 2 might be satisfied with is that many countries have laws allowing their own justice systems to try the diplomat (after recall) for the crime he is alleged to have committed. That is most commonly used when either the justice system in Country 2 is suspect or their punishment regime is way out of whack with Country 1's. (For example, China would fall under both. No one can expect a fair trial there, period. Well, except for fools. And liberals... I know, redundant that. But mostly, their punishments are far harsher than most can accept. A diplomat caught committing a money-based crime could face a firing squad, just like a Chinese citizen, while the same crime at home might get 2-5 years in a mild prison with plenty of relatives visiting. Country 1 might consider letting the Chinese try him to be "throwing him to the wolves" but still feel he should be tried, just at home with the justice and punishment system there.)
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