A Fact-Check for the Four-Color World

Friday, November 18, 2005

Diplomatic Immunity

Smallville: Exposed

A little long in coming, perhaps, but this post concerns the Smallville episode from two weeks back. Chloe takes a scared phone call at the Daily Planet, and when she and Lois go to meet the mysterious caller, the woman is run down and killed by a speeding vehicle.

Long story short, she is revealed to be a stripper, and several strippers from the same exclusive club have gone missing over several months. The culprit turns out to be the son of a foreign diplomat, who ends up abducting Lois and then gets caught by Clark. Detective Maggie Sawyer and the Metropolis P.D. arrive at the scene, but tell Clark and Lois to let him go. Maggie explains in a rather convenient quote:

"I'm afraid Mr. Lyon is free to go...As a consulate guest in our country, Mr. Lyon can't be arrested or tried for any crime he commits on our soil. Even murder."

So did Smallville get this right? Of course not; it's Smallville. This line comes moments after a scene where Clark ropes a helicopter out of the sky, with Lois inside, and nobody catches on to the fact that he has powers. You can't expect them to get something like diplomatic immunity right when they can't help but botch the mere notion of hiding a secret identity.

The concept of diplomatic immunity has been around for centuries, but the general law of it was codified by the UN in the Vienna Convention on Diplomatic Relations in 1961 and on Consular Relations in 1963. And it can let you get away with murder. But not at all like the way Smallville shows.

First, the level of diplomatic immunity is different depending on what kind of diplomat you are. If you are an ambassador and work out of an embassy, neither you nor your family can be arrested, detained, or prosecuted for a crime in your host country.

But as the dialogue says (and as was evidenced earlier in the episode by Chloe's picture of the killer's license plate), he's the son of a diplomat who works in a consulate, not an embassy. This makes a fair amount of sense, as Metropolis is very likely to have a consular office, but is all but guaranteed to lack an embassy. And consular agents can be arrested and prosecuted for crimes, so Maggie's statement is flat-out wrong.

So, for the sake of argument, let's assume his dad did work for an embassy. Would he be entitled to diplomatic immunity then? No, because while diplomatic immunity does cover family members, the US defines 'family member' to include children only up through 23, if they are in school (up to 21 otherwise). Mr. Lyon is clearly over 23, so he could still be arrested and prosecuted even if his dad was an ambassador.

But maybe he just looks really old for his age. So if he was the 20-year-old son of an ambassador, then could he get away with murder? Well, maybe.

Perhaps the most infamous time this happened was 21 years ago in the UK, when two Libyan ambassadors shot and killed a British policewoman. The two were not prosecuted, but they were expelled from the country, and the UK cut off diplomatic relations with Libya.

Usually what happens in instances of truly heinous crimes (as opposed to the relatively common instances of double-parking and traffic violations), the host country asks the diplomat's home nation for a waiver of immunity. The US has apparently done this on several occasions, and such waivers are often given. I've read that there was a Belgian diplomat who murdered two people in Florida some years back, and Belgium was reluctant to waive immunity because Florida has the death penalty. But once the death penalty was conclusively eliminated as a possible punishment, Belgium issued the waiver, and said diplomat is now serving a 50-year sentence.

Even if the waiver is not granted, that does not mean the murderer is simply allowed to walk away as if nothing happened. The host country will declare him persona non grata, and he will have a limited amount of time to remove himself from the country forever (like the Libyans). And once he returns to his homeland, he may still face punishment from his own government for his crimes (again, rumor has it, like the Libyans).

So Maggie was wrong. A consulate guest in our country can be arrested and tried for a crime committed on our soil. And even if he had the highest level of diplomatic immunity possible, we still wouldn't turn a blind eye and allow a serial killer to walk free without repercussions.

One final and non-legal thought: I was sorely disappointed when, after being identified as the "son of a diplomat," Mr. Lyon's home country was not revealed to be Vlatava or Bialya or one of the other myriad fictional DC nations. Why pass up such an obvious opportunity to make an easy reference? Plus, it'd be a lot easier to believe that a country like Bialya would refuse a waiver of immunity.

(Hat tip to MacQuarrie)